HUSSAIN KHALID v. TORTURE CLAIMS APPEAL BOARD

HCAL 955/2018

[2023] HKCFI 551

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 955 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

1.  the application for leave to apply for Judicial Review be reinstated; and

2.  leave to apply for judicial review refused

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of Pakistan who entered Hong Kong illegally sometime in late December 2008 and was arrested by police on 31 December 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncle for refusing to marry his uncle’s daughter as pre-arranged by the family many years ago. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Bhimber AK, Pakistan. While he was a very small child it was arranged by his parents and his paternal uncle that he should marry his uncle’s daughter when he reached the age of majority.

3.  After leaving school the Applicant worked as an electrician in his home district, but after reaching the age of majority he refused to marry his uncle’s daughter as arranged, and despite repeated threats from his uncle, the Applicant in 2005 instead married another girl, and yet his uncle would continue to harass and intimate him for failing to marry his daughter.

4.  To avoid such threats the Applicant in 2006 moved to Rawalpindi, but one day he was arrested by police due to a complaint made by his uncle against him, and although he was subsequently released without charge, he feared of further trouble from his uncle, and so on 14 December 2008 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 18 September 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 9 March 2015 the Director of Immigration (“The Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from him other than some angry words from him on the telephone, that it is not accepted that after all these years since he left the country in 2008 that there would still be any adverse interest in him, that in any even tit was a private family dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Lahore where it would be difficult if not impossible for his uncle to locate him.

7.  On 4 May 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 25 May 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

8.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“The Board”) against the earlier decision of the Director, the notice of which was filed by him on 20 March 2015, but for which he later failed to attend the scheduled oral hearing on 25 January 2018 before the Board, and in the absence of any subsequent explanation from him for his failure to attend the hearing, the Board proceeded to deal with his appeal in his absence and on paper, and on 14 May 2018 it dismissed his appeal and also confirmed the decisions of the Director.

9.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s claim but which he failed to attend his appeal hearing in order to clarify and explain them and other queries raised of his claim by the Adjudicator without any explanation that the Board doubted the credibility of his claim of fear of harm from his uncle for fleeing his country for Hong Kong, and that in any event it was a private family dispute between them without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 28 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date, and before his application was heard by the court, the Applicant on 9 January 2020 filed an affirmation to withdraw his application as he wanted to return to his home country, and to which the Court on 13 January 2020 allowed his application to be so withdrawn without determination.

11.  However, more than 2 years later on 28 November 2022 the Applicant filed another affirmation to request that his application be re-opened for assessment. Given the nature of this sort of applications and the serious implications of the refusal of such applications, and the fact that the merits of his application had never been properly determined, I directed that his application be re-instated for consideration on paper as he never requested any oral hearing for his application.

12.  Nor as noted above has he put forward any proper ground for his intended challenge of the Board’s decision. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

13.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1