SHAH MAZLOOM v. TORTURE CLAIMS APPEAL BOARD

HCAL 1478/2018 and

HCAL 2733/2019

(Consolidated)

[2021] HKCFI 2269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1478 of 2018

AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2733 of 2019

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 the Applicant in HCAL 1478/2018 and HCAL 2733/2019 in open court;

1.  HCAL 1478/2018 be consolidated with HCAL 2733/2019; and

2.  Both applications for leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 36-year-old national of Pakistan who entered Hong Kong illegally on 10 March 2014 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by some local gangsters for refusing to pay protection money for his business. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Tamasm Abad, Rawalpindi, Punjab, Pakistan before moving with his family to Kamra, Attock, Punjab. In 2011 he started to run a mobile phone business with a partner in Rawalpindi.

3.  In 2013 some of the local gangsters called his shop on the phone demanding for protection money, but after he refused their demand, he found his shop being damaged, and fearing for his safety, he therefore paid the gangsters protection money as demanded, but when those gangsters kept demanding for more money, and when the Applicant was unable to comply, on one occasion the gangsters fired shots at his shop with their guns which scared the Applicant that he closed his shop and departed Pakistan on 1 March 2014 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.  By a Notice of Decision dated 22 November 2017 the Director of Immigration (“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”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by those local gangsters upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that he had since closed down his business and hence no risk of any further demand from gangsters for protection money, that in the absence of 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 204 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 Lahore or Islamabad where it would be difficult if not impossible for those local gangsters to locate him.

6.  On 4 December 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 18 May 2018 before the Board during which he admitted to the Adjudicator that what he had said in his claim of threats from gangsters were lies and false, that there were no well-paid jobs that he could find in Pakistan and hence he came to Hong Kong where he finds that life is good and hence he wants to stay here. On 28 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found on the Applicant’s own admissions at his appeal hearing that there is no basis for his claim under any of the applicable grounds, and that in any event on his own evidence that there is not a real risk that the Applicant will face any of the proscribed forms of harm should he return to Pakistan that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.      

8.  On 27 July 2018 the Applicant filed a Form 86 under HCAL 1478/2018 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date.

9.  However, before his leave application could be dealt with by the court, the Applicant on 17 September 2019 filed another Form 86 under HCAL 2733/2019 again for leave to apply for judicial review of the Board’s decision, and again no ground for seeking relief was given in the Form or in his affirmation, but somehow he was allowed by the Registry to do so, and at the hearing of both of his leave application, he explained that after the filing of his first Form 86, he formed an intention to leave Hong Kong to return to Pakistan, and so he informed the Immigration Department, but later when he changed his mind and wanted to pursue his leave application, he thought that his first Form 86 had already been withdrawn, and so he filed another one just in case, and which was the same explanation accepted by the Registry. 

10.  Upon ascertaining from him that it was the same Board’s decision that he wishes to challenge in both of his leave application, I propose to consolidate both applications for decision and accordingly so order. As noted above the Applicant has not put forth any proper ground for either of his applications, 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.

11.  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.

12.  In the Applicant’s case, the Board rejected his claim on the basis of his own admissions at his appeal hearing that his claim was a lie and that he wants to stay in Hong Kong for reason other than any of the applicable grounds, and for the thorough and detailed analysis and reasoning set out in paragraphs 27 – 41 of its decision by the Board 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.

13.  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 even if true 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.     

14.  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.

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

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