ALI ASIF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 575/2017

[2019] HKCFI 317

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 575 of 2017

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 the Applicant being present / absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 31-year-old national of Pakistan who entered Hong Kong illegally on 20 January 2014 and was arrested by police on the same day.  After being referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the husband of his former girlfriend.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Burhan Village, Punjab, Pakistan.  After leaving school he followed his father’s footstep and supported the political party Pakistan Muslim League (N) (“PML-N”) regularly attended their meetings and rallies.

3.  In 2012 he started a relationship with a girl from the same village in Burhan which ended in 2013.  Later in the same year his former girlfriend married her husband ML who was a member of rival party Pakistan Muslim League (Q) (“PML-Q”).

4.  In August 2013 ML discovered the applicant’s past relationship with his wife and was unhappy about it, he therefore with several of his men confronted the applicant and proceeded to attack him with wooden sticks, and when the applicant was fleeing from the scene ML fired his pistol at him but missed and the applicant managed to escape without serious injuries.

5.  Upon returning to his home the applicant and his father decided to make a report to the police, but when they were on their way to the local police station, they were approached by several men armed with wooden sticks who threatened to kill them if they dared to go to the police, and so they returned home without making the police report.

6.  About one week later one night some men came to the applicant’s house looking for him, and when his father answered the door, they demanded that he handed over the applicant or else he would be harmed, but the applicant managed to escape through the backdoor to hide in the bushes until those men left.

7.  On the following morning on his father’s advice the applicant fled to Lahore where he stayed without any incidents, but later when he heard that ML had sent men looking for him there, he then fled to Islamabad but decided it was no longer safe for him to remain in Pakistan, and so on 18 January 2014 he departed for China, and from there he subsequently sneaked into Hong Kong and raised his non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 12 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

8.  By a Notice of Decision dated 13 April 2016 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 found the low intensity and frequency of ill-treatment from ML in the past indicative of low risk of harm to the applicant upon his return to Pakistan, that it was a private dispute with ML and in the absence of any evidence of 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 199 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 area away from his home district such as Islamabad or Lahore where he had stayed before without incidents and where it would be difficult if not impossible for ML to locate him.  

10.  By a Notice of Further Decision dated 21 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

11.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, for which he filed his appeal on 25 April 2016 in which he claimed to have heard that ML had subsequently killed his wife because he felt humiliated by her previous relationship with the applicant, and also produced photographs of his brother’s injuries said to have been inflicted by ML after he left Pakistan, as further proof that ML would also want to kill him upon his return to Pakistan, and for which he attended two oral hearings on 23 June 2017 and 11 August 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 24 August 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board found the root of the applicant’s conflict with ML is simply one of jealousy and not political, that ML’s intention shown by the applicant’s asserted incidents was merely to scare or warn him off and to stay away from his wife, that there is no evidence of his wife’s subsequent death or that she was killed by ML other than hearsay and the applicant’s own speculation, that the photographs produced by him at the hearing were not conclusive evidence that his brother had been attacked by ML, that in any event his dispute with ML was a personal and private matter that in the absence of any official involvement state or police protection would be available to the applicant if resorted to, and that being an able young man there are many places to where he can relocate in Pakistan should he continue to be fearful of staying in his home village, and concluded that there are no substantial grounds for believing that the applicant would be subject to any harm on his return to Pakistan.

13.  On 1 September 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge which can be summarized as follows:

(1)  that the adjudicator erred in assessing the level of risk of harm to be low on the applicant’s alleged reasons and that he was not given any legal or language representation throughout his appeal/petition before the Board to which he should be entitled;

(2)  that the Board failed to consider the concept of extended state acquiescence;

(3)  that the Board failed to give sufficient weight to the past ill-treatment received by the applicant to reject his claim of fear of ill-treatment;

(4)  that the adjudicator had ignored the fact that there is much COI and reports on police corruptions to show that the applicant’s life would be in danger;   

(5)  that the adjudicator failed to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(6)  that the adjudicator failed to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(7)  that the adjudicator failed to make finding of fact as to whether there exists in a consistent pattern of gross and mass violation of human rights in Pakistan in the consideration of the risks to the applicant;

(8)  that the adjudicator erred in finding that the Pakistan government is improving in protecting human rights of its citizens while ignoring many incidents of injustice of government and police violating human rights on regular basis in Pakistan;

(9)  that the Director failed to rely on his additional facts and grounds without any further interview in unfairly rejecting his claim under BOR 2 risk;

(10)  that the adjudicator erred in not accepting that he faces genuine and substantial risk of being subjected to ill-treatment under BOR 3 risk upon his return to Pakistan; and

(11)  that the adjudicator erred in the decision about the death of his former girlfriend being based on hearsay and speculation and in refusing to accept the photographs of his brother’s injuries as evidence of being inflicted by ML.     

14.  Most of these grounds are however just broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or how the concept of extended state acquiescence applied to his case, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how are police corruption or human rights violation in Pakistan relevant to his dispute with ML which was even on his own case a private and personal dispute without official involvement.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

15.  As has been held by the Court of Appeal, the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture or harm upon his return: see Re RS CACV 206/2012, 20 August 2013; and Re Fitri Ambarwati and Maria Zubair [2018] HKCA 461.

16.  As for the applicant’s complaint of not being provided with legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

17.  The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his two appeal hearings before the Board and to answer questions put to him by the adjudicator without difficulty and with the assistance of an interpreter.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

18.  As for his complaints over various findings of fact by the adjudicator, as has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an applicant to present and articulate his claim is in the screening process and interviews before the Immigration Department and in the process before the Board where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error being identified by the applicant, as judicial review is not an avenue for revisiting the assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

19.  Further, as it has been established by both the Director and the Board 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.

20.  In the premises and having proceeded to consider 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.

21.  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