ALI ZEESHAN v. GREGORY BROCK, TORTURE CLAIMS APPEAL BOARD

HCAL 463/2018

[2020] HKCFI 1433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 463 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 25-year-old national of Pakistan who entered Hong Kong illegally on 6 October 2015 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 certain supporters of rival political party Pakistan Tehreek-e-Insaf (“PTI”).  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Tehsil Chak Jumrah, District Faisalabad,Pakistan into a family of supporters of the political party Pakistan Muslim League (N) (“PML(N)”), and when he came of age, he also became a supporter of PML(N) but without holding any post in the party.

3.  In April 2015 his paternal uncle decided to run for election of the Village Nazim/ Councilor against the candidate from PTI, and the Applicant therefore helped out with his uncle’s election campaign by putting up and distributing promotional materials in the village.

4.  One day when he was putting up promotional materials in the village for his uncle’s campaign, some PTI supporters threatened him to stop the campaign, threw away his campaign materials, and punched and kicked him but he managed to flee from the scene with only superficial injuries.

5.  On another occasion in May 2015, while the Applicant and two of his fellow supporters were putting up his uncle’s campaign materials, they were again threatened by the group of PTI supporters who proceeded to assault them with punches and kicks, and while his fellow supporters suffered more serious injuries and were taken to the hospital, the Applicant managed to escape with only minor injuries.  Afterwards he reported the assault to the police.

6.  On the following day the Applicant received a telephone call from the PTI candidate who was furious about his report to the police and threatened to kill him unless he stopped his campaign for his uncle.

7.  As the Applicant became fearful for his life, he therefore fled to Lahore to take shelter at a relative’s home, and then moved to a friend’s place in Jhang City where he was advised by his friend to seek protection abroad, and so on 3 October 2015 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police heraised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 14 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 10 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 (“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”).

9.  In his decision the Director took into account 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 those PTI supporters upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that given that the Applicant held no position in PML(N) that there was no reason for those PTI supporters to specifically target him for harm, 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 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 young man to move to other part of Pakistan away from his home district in large cities such as Karachi or Lahore where he had previously stayed without incidents and where it would be difficult if not impossible for those PTI supporters to locate him.

10.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended two oral hearings on 19 September 2017 and 9 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 12 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found significant inconsistencies in the Applicant’s evidence that his claim of threats of harm from the PTI supporters was unreliable, that it did not accept that he would still be of any adverse interest to the PTI supporters upon his return to Pakistan, and that in any event it would not be unreasonable or unsafe for him to relocate to other parts of Pakistan away from his home district where there will not be any risk of harm to him that his claim for non-refoulement protection failed on all applicable grounds.  

12.  On 21 March 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 other than a regurgitation of his claim that his life was in danger in Pakistan and that the court should look into his case again.

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.  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 39 – 63 of its decision and with the benefit of hearing him in his oral evidence and answers to questions raised of his claim during the oral hearing of his appeal, and in the absence of any error of law 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 him to challenge the findings of the Director or the Board.

15.  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.

16.  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.

17.  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