SHAFIQ UR RAHMAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 879/2018

[2020] HKCFI 2468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 879 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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of Pakistan who last entered Hong Kong illegally on 13 April 2016 and surrendered to the Immigration Department on the same day when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his former business partner and a customer over some business dispute. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Green Town, Lahore, Punjab, Pakistan. After leaving school he assisted in his father’s real estate agency which his father ran with his partner Akram in Lahore.

3.  In 2006 or 2007 he took over his father’s share in the partnership upon his father’s retirement, and ran the business with Akram, but after a serious dispute with Akram over a property deal with a customer Khan which led to his resignation from the partnership, and when he started to receive threats from both Akram and Khan over certain outstanding money dispute arose from that property deal, he departed Pakistan in May 2008 for China, and from there he sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim with the Immigration Department but which he later withdrew in July 2013 after learning that his father was ailing, and was repatriated to Pakistan in August 2013.

4.  Upon returning to his home district to visit his father, the Applicant however continued to receive threats from both Akram and Khan, and so in April 2016 he departed Pakistan again for China, and from there he sneaked into Hong Kong and surrendered to the Immigration Department when he again raised his non-refoulement claim for protection on the same basis as before, for which he completed a Non-refoulement Claim Form (“NCF”) on 28 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.             

5.  By a Notice of Decision dated 4 January 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 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 Akram and Khan upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that his problems with them were private business disputes 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 201 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 Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for Akram or Khan to locate him.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 16 January 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 10 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found the Applicant’s evidence as to his claim unclear, imprecise, internally inconsistent and inconsistent with the information in his NCF and representations made to the Director with such serious discrepancies as well as his lack of credibility that it did not attach any credence to his claim regarding his alleged dispute with Akram and Khan over the property deal, and concluded that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 21 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, and in his supporting affirmation of the same date he merely repeated his claim that he would be killed by his enemy if returned to Pakistan without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.    

10.  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.

11.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 47 – 58 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.  

12.  Furthermore, the fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

13.  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.

14.  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