KHAN ABDUL WAHEED v. TORTURE CLAIMS APPEAL BOARD

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 be refused.

Observations for the Applicant:

1.  The Applicant is a 55-year-old national of Pakistan who entered Hong Kong illegally on 4 November 2009 and was arrested by police on 8 November 2009. 　After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by a local gangster for giving evidence for the police in a trial against that gangster.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Noor Pur, Gujrat, Punjab, Pakistan. After leaving school he ran his own business to make his living, got married and raised a family with 4 children in his home district.

3.  A friend of the Applicant’s brother-in-law, Husnain owned a shop in a prime site of the town market which was coveted by a local gangster Guddu who was also a member of the political party Pakistan Muslim League (N) (“PML(N)”) who had wanted to purchase the shop at some cheap price but was rejected by Husnain which led to conflicts between the 2 of them.

4.  One day in June 2017 their conflicts escalated to a gun fight between Husnain and Guddu and his followers in the town market that led to the killing of both Husnain and the Applicant’s brother-in-law, and that Guddu and his followers were then arrested by police and charged with murders.

5.  While waiting for trial Guddu instructed some of the local PML(N) supporters and his followers to threaten the potential witnesses including the Applicant not to give evidence for the prosecution, but the Applicant ignored their threats and proceeded to subsequently give evidence for the prosecution at the trial which eventually resulted in the convictions of some of Guddu’s followers but Guddu was acquitted by the court.

6.  Shortly after the trial one evening while on his way home from the town market, the Applicant saw a vehicle passed by with Guddu’s people travelling towards the direction of his home, and fearing that they were on the way to harm him, the Applicant went to hide in a friend’s home until late at night when he eventually returned home and was told by his wife that Guddu’s men had come looking for him that evening, and when they could not find him, they threatened his family and damaged his household furniture, and before they left they warned his wife that they were going to find and kill the Applicant for having given evidence against Guddu at the trial.

7.  As a result the Applicant became fearful for his life and fled to hide in a relative’s home, and on 23 October 2009 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non‑refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 8 December 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 4 March 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Guddu and his followers upon his return to Pakistan as low due to the low intensity and frequency of past ill‑treatment from them, that there is no evidence of any real intention of Guddu to seriously harm or kill him given the fact that Guddu had already been acquitted by the court and had no further reason to harm the Applicant, nor is it accepted that he would still have any adverse interest in the Applicant after all these years since he left the country, that in any event it was a private dispute between the Applicant and Guddu only 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 196 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 areas of the country away from his home district in large cities such as Karachi or Islamabad where it would be difficult if not impossible for Guddu to locate him.

10.  On 10 March 2015 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 30 June 2016 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 12 April 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision[1] the Board accepted the Applicant’s claim of fear of harm from the local gangster Guddu for having given evidence for the police against Guddu in a criminal trial but found that it was a private dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by Guddu that his claim for non-refoulement protection failed on all applicable grounds.

12.  Meanwhile on 8 May 2017 the Director on his own initiative invited the Applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2”), and after receiving and considering a written submission from the Applicant in which he just repeated his claim as before, the Director by a Notice of Further Decision dated 29 May 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 upon his return to Pakistan, and that in any event on the factual basis of his own case that his claim did not engage the BOR 2 ground.

13.  The Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which the Board did not find it necessary to hold a further oral hearing and dealt with the appeal on papers based on the materials before the Board including those additional materials submitted by the Applicant, and by a Decision[2] dated 29 September 2020 it dismissed the appeal upon affirming the availability of state protection and internal relocation to the Applicant upon his return to Pakistan, and that in any event on the factual basis of even his own case that the Applicant’s claim simply did not engage the BOR 2 ground due to its limited scope.

14.  On 9 October 2020 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board for dismissing his appeal as regard his BOR 2 Claim, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.  As such, 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 of the Board’s decision.

15.  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.

16.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real 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.

17.  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 under all the applicable grounds.

18.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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