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HCAL 129/2018
[2019] HKCFI 816
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 129 of 2018
BETWEEN
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Umar Shahzad |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The applicant is a 43-year-old national of Pakistan who entered Hong Kong illegally in April 2012 and was arrested by police on 27 June 2012. After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by a group of supporters of rival political party Pakistan Muslim League N (“PMLN”) which was later taken as a non-refoulement claim under the Unified Screening Mechanism (“USM”). He has since been released on recognizance pending the determination of his claim.
2. The applicant was born and raised in Village Sagri, District Tehsil Jhelum, Punjab, Pakistan. After leaving school he worked as a rickshaw driver to earn his living, and in 2005 or 2006 he joined the Pakistan Muslim League Q (“PMLQ”) regularly attending their rallies and voting for the party during elections.
3. In 2008 PMLN won the election and became the ruling party. One day the applicant was approached by a small group of four or five supporters of PMLN in the village who asked him to join their party, and when he refused, these men would keep harassing him every time they ran into him in the village by pestering him to join their party, and when the applicant reported the matter to the police, no action was taken by them either.
4. One day in 2011 while the applicant was waiting for passengers in the village, he was again approached by the same group of PMLN people for him to join their party, and when he refused, they showed him that they were carrying pistols and warned him that they would shoot him if he still refused to join PMLN, After the they left the applicant reported the matter to the police, and although they promised to investigate the matter, again no action was taken by the police against those men.
5. Between 2011 and 2013 these PMLN men kept harassing the applicant almost every week including making false complaints to the police that his rickshaw was blocking the traffic, and when the applicant felt that the police would not be able to help him, and as he did not want to continue to suffer such harassments and threats from these PMLN men, he decided to leave Pakistan and so on 16 November 2011 he departed for China, and from there he later sneaked into Hong Kong and subsequently raised his torture claim, which was later taken as a non-refoulement claim under USM, for which he completed Non-refoulement Claim Form on 26 June 2015 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.
6. By a Notice of Decision dated 27 October 2015 the Director of Immigration (“the 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 (“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 PMLN men to the applicant upon his return to Pakistan as low due to the absence or low intensity and frequency of past ill-treatment from them, that any such ill-treatment essentially of verbal threats and harassments from them did not attain the minimum level of severity under any of the applicable risks, that there is no evidence of any real intention on the part of these PMLN men to seriously harm or kill him, 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 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 adult with work experience to move to other part of Pakistan away from his home district in large cities such as Lahore or Karachi where it would be difficult if not impossible for those PMLN men to locate him.
8. By a Notice of Further Decision dated 20 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 9 November 2015, and for which he attended an oral hearing on 3 April 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 18 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.
10. In its decision the Board found no evidence that the applicant had suffered any physical violence from those PMLN men other than verbal harassments for him to change his allegiance to their party, that he had never been tortured and that there was never any official involvement that state protection would be available to him, and that internal relocation is a viable option to him as an able-bodied adult with work experience that it would not be unduly harsh for him to relocate to other areas of Pakistan in Karachi or Lahore where he can safely reside without any fear of being located by those PMLN men.
11. On 29 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no grounds for seeking relief was given in his Form or in his supporting affirmation of the same date in which he merely stated that:
“ I can’t go back to my country at this moment because danger is still there for my life. Please help me to stay in Hong Kong until my problem will be solved.”
12. Here the applicant was merely repeating his claim as before, and in the absence of any reasonably arguable grounds for his intended application, or any legal error or procedural unfairness being shown by him in the Board’s decision, I am unable to see any prospect of success in 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 where the proper occasion for an 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 Re Litoun Mounsy [2018] HKCA 537.
14. 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.
15. 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.
16. 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.
Dated the 13th day of June 2019.
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(NG Ka-wing)
for Registrar, High Court |
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 13 June 2019
Umar Shahzad
Applicant’s ref. no.:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 13 June 2019
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 2537/15/11/49/P691
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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