HUSSAIN AZHAR v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE APPOINTED TO DETERMINE THE APPLICANT’S PETITION AND ANOTHER

HCAL 380/2018

[2019] HKCFI 516

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 380 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 the Applicant being absent;

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 9 December 2013 and was arrested by police on 9 February 2014.  After he was referred to the Immigration Department for investigation, he raised a torture claim which was later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by supporters of rival political party Pakistan Muslim League (Nawaz) (“PML(N)”). He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Jodha, Jhelum, Pakistan.  After leaving school he worked as a welder in City Dina, Jhelum, and followed his family’s footstep in becoming a supporter of the political party Pakistan Tehreek-e-Insaf (“PTI”) regularly attended their meetings and rallies.  At that time rival PML(N) was the ruling party and the applicant would experience violent conflicts with their supporters from time to time.

3.  One day in about mid-2013 while the applicant and his fellow PTI supporters were playing volley ball in their home village, they were confronted by a group of PML(N) supporters demanding that they quit their party to join theirs, and when they refused a fight broke out between them that one of the applicant’s friends was seriously injured but the applicant was able to escape unhurt.

4.  About a month later when the applicant together with his fellow PTI supporters were on their way to the general election held in Jhelum, they were stopped by a group of PML(N) supporters who demanded that they turned back to their home without voting, and when they refused there were some shoving and pushing but before the situation turned violent, the police arrived to separate them and as a result the applicant and his fellow PTI supporters were able to cast their votes in the election but afterwards they all immediately went home to avoid any further confrontation with the PML(N) people.

5.  However, shortly after PML(N) won the election, the applicant started to receive telephone calls from some PML(N) supporters threatening that they would go after him and his fellow PTI supporters to teach them a lesson now that PML(N) had won the election and remained as the ruling party.  Fearing for his own safety, the applicant was advised by his friend to leave Pakistan to seek protection in Hong Kong, and so he departed on 6 December 2013 for China, and from there he later sneaked into Hong Kong, and after his arrest by the police he raised his torture claim and sought non-refoulement protection, for which he later completed a Non-refoulement Claim Form on 29 January 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service. 

6.  By a Notice of Decision dated 15 July 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 the Hong Kong Bill of Rights (“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”).

7.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from those PML(N) people upon his return to Pakistan as low due to the absence or low intensity and frequency of past ill-treatment from them, that the applicant was not personally or specifically targeted by the PML(N) people as the threats were made against PTI supporters in general, 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 (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 193 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 work experience to move to other part of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for those PML(N) people to locate him.

8.  By a Notice of Further Decision dated 21 March 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”).

9.  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, the notice of which was filed on 25 July 2016, and for which he attended an oral hearing on 28 November 2017 before the Board when he declined to give any further evidence after confirming his claim as stated in the hearing bundle but did answer some of the questions put to him by the adjudicator for the Board.  On 8 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found the applicant’s evidence in his claim inconsistent, contradictory and speculative, that it was not persuaded that he was ever threatened or assaulted by the PML(N) people as alleged, and concluded that he failed to demonstrate that he is entitled to non-refoulement protection in Hong Kong under any of the applicable grounds. 

11.  On 8 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, and in it he put forward the following grounds for his intended challenge:

(1)  that the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim;

(2)  that their decisions were not fair or reasonable as required by the Wednesbury test;

(3)  that they failed to take into consideration that the right to life must be protected from extra-judicial killings that he may face if deported to Pakistan; and

(4)  that the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal.  

12.  These are however just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable, or how would extra-judicial killings be relevant to his claim, or how did the adjudicator fail to give him sufficient time or opportunity to produce his evidence for his claim or his appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and that even now in his application before me he did not produce any further evidence which he claimed to have been unable to do before the Board, nor did he do so at the oral hearing of his application which he failed to attend without any explanation.  In the premises I do not find any basis or merits in any of his grounds or that they are reasonably arguable for his intended challenge.

13.  As has been repeatedly emphasized by the Court of Appeal, 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 Re Litoun Mounsy [2018] HKCA 537.

14.  In the present case the applicant declined to give further evidence to substantiate or clarify his claim before the Board, which then proceeded to evaluate his claim based on the materials available to it, and for the detailed analysis and reasoning set out in paragraphs 40 – 50 of its decision it was entitled to make those adverse findings as it did against him in rejecting his non-refoulement claim for protection, and in the absence of any legal error or procedural unfairness in that decision being identified by the applicant either in his proposed grounds or at the hearing before me, I do not see any prospect of success in his intended application.

15.  Furthermore, the fact 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 subsequently 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.

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