KHAN MUHAMMAD ALAM ZAIB v. TORTURE CLAIMS APPEAL BOARD

HCAL 342/2019

[2024] HKCFI 85

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 342 OF 2019

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 34-year-old national of Pakistan who entered Hong Kong illegally on 4 May 2016 and surrendered to the Immigration Department on 20 May 2016 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political party Pakistan Muslim League (N) (“PML(N)”) as he supported their rival 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 Village Waisa, Tehsil Hazro, District Attock, Punjab, Pakistan. After leaving school he worked as a driver in his home village, and supported PTI regularly attended their local meetings and activities without holding any official post in the party.

3.  His uncle however supported PML(N) and had been trying to persuade the Applicant to switch his support but the Applicant always refused, much to his uncle’s displeasure.

4.  On one occasion in late 2012 while on his way home from work, the Applicant ran into a group of PML(N) supporters who recognized him as a PTI supporter and proceeded to beat him with punches and kicks but the Applicant managed to flee from the scene to return home without serious injuries.

5.  Things however became worse in May 2013 after PML(N) won a local election that some of their supporters became more aggressive against PTI supporters, and with more frequent and violent attacks on PTI people including making false charges against them that led to many of them being arrested by police and were ill-treated or tortured during their detention.

6.  In August 2015 the Applicant heard from his family and neighbours that he had been framed by his uncle and the PML(N) people for the recent murder of one of their leaders, and that the police had come to his home looking for him.

7.  As a result the Applicant went into hiding in Rawalpindi, and then in various places in Punjab, and on 14 August 2016 he departed Pakistan for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 1 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 27 March 2018 the Director of Immigration (“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 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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of him being harmed or killed by those local PML(N) supporters upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his uncle or those local PML(N) people to seriously harm or kill him or to have any political reason to specifically target him given that he was just an ordinary PTI supporter without holding any official post in the party, nor is there any evidence of any adverse interest of the police in him that he was able to leave the country without any problem, that in any event 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 204 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 Lahore or Islamabad where it would be difficult if not impossible for anyone to locate him.

10.  On 9 April 2018 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 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 25 January 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence as to his alleged threats from his uncle or the PML(N) people that it doubted his claim of fear of harm from them that caused him to leave his country to come to Hong Kong for protection, that there is no political reason for them to specifically target him for harm given that he was just an ordinary PTI supporter without any official post or important role in the party given his very limited knowledge of their activities, nor is there any evidence of any adverse interest of the police in him given that he was able to leave the country without any problem that it concluded that there are no substantial grounds for believing that the Applicant faces any real chance of being harmed by anyone for any reason in the foreseeable future upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

12.  On 8 February 2019 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 or in his supporting affirmation of the same date in which he just repeated his claim as before 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.

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 as to his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 72 – 91 of its decision and with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or judicial 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 to challenge the findings of the Board.

15.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also 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 the reasons given 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