ALI SHAFQAT v. TORTURE CLAIMS APPEAL BOARD

HCAL 1034/2018

[2021] HKCFI 992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1034 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 the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Pakistan who entered Hong Kong illegally on 28 September 2009 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by a wealthy landlord in his home village over a land dispute between them, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis, and was subsequently released on recognizance pending determination of his claim.

2.  The Applicant was born and raised in Village Burhan, Attock, Pakistan.  After leaving school he farmed on his own farmland in his home village which he inherited form his father.

3.  In 2009, Ayub, a wealthy local landlord and the owner of the land adjacent to the Applicant’s land, offered to buy his land but when the Applicant refused to sell, Ayub became furious and started to send armed men to threaten him, and after witnessing those men killing another villager over other dispute, the Applicant became fearful for his life, and so on 7 September 2009 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police, 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 1 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  Whilst being released on recognizance pending determination of his claim, he was again arrested by police for various offences, first on 19 April 2011 for robbery for which he was convicted and sentenced to prison for 3 years and 4 months, and then on 30 November 2015 for undertaking unauthorized employment for which he served another prison term of 22 months.

5.  By a Notice of Decision dated 30 August 2017 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 risk of him being harmed or killed by Ayub upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from him, that there is no real intention on the part of Ayub to harm or kill him as killing him would not enable Ayub to get his land, that in any event it was a private land 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 770,000 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 such as Islamabad where it would be difficult if not impossible for Ayub to locate him.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 15 February 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 25 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found no reliable or objective evidence of any threats against the Applicant from Ayub all these years after his departure over the alleged land dispute, that in any event that it was a private land dispute between them without any evidence of any state or official involvement that state/police protection as well as reasonable internal relocation would be available within Pakistan for the Applicant to move safely to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.   

9.  On 6 June 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 attached a copy of the decision but 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 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.

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 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.

12.  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.

13.  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