IDREES MUHAMMAD USMAN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1360/2018

[2021] HKCFI 1226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1360 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 54-year-old national of Pakistan who arrived in Hong Kong on 18 August 2011, and when he was refused entry by the Immigration Department, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by a former business customer over some monetary dispute in his home district, and when his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Mohala Ansaar Colony, City of Multan, Punjab, Pakistan. After leaving school he worked in various jobs before starting his own business with a cousin in 2003 in his home district.

3.  In 2005 one of his customers Kala started to default with his payments for goods supplied by the Applicant’s business, and had over the years fallen into a large sums of money owed to the Applicant’s business, and on one occasion in 2011 when the Applicant and his cousin went to demand payments from Kala, they broke into a heated argument and then a scuffle during which Kala was hit in the head by the Applicant’s cousin, fell and lost consciousness, and had to be taken to the hospital for treatment.

4.  Later when the Applicant heard that Kala’s brothers were furious about the incident and were looking for him and his cousin for revenge, and so they fled to Lahore, and from there the Applicant departed Pakistan on 4 August 2011 for China, and from there he travelled to Hong Kong, but when he was refused entry by the Immigration Department, he raised his torture claim, and after it was rejected, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 27 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 29 November 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by Kala or his brothers upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that it was a private personal 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 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 or Islamabad where it would be difficult if not impossible for Kala or his brothers to locate him.

7.  On 2 December 2016 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 8 November 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 20 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found serious inconsistencies and discrepancies in the Applicant’s evidence and that his account was fundamentally and markedly different from the one previously given to the Director that it concluded that he had fabricated his case that his claim for non-refoulement protection failed on all applicable grounds.  

9.  On 11 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely attached copies of hearing bundle for use in his appeal before the Board but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

10.  As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions 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 essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 23 – 35 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 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 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 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