ALI RAFAQAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1419/2018

[2020] HKCFI 507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1419 of 2018

     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 refused.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Pakistan who last entered Hong Kong illegally on 26 October 2015 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claimon the basis that if he returned to Pakistan he would be harmed or killed by certain supporters of rival political party Pakistan Muslim League (N) (“PML(N)”).  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Jalalpur Jattan, Gujrat, Pakistan.  After leavingschool he worked as a carpenter, and followed in his family’s footstep to support the political party Pakistan Peoples Party (“PPP”) by attending their local meetings and rallies as well as assisting in their election campaigns.

3.  In about 2001 during the general elections, the Applicant and his family were approached by several supporters of PML(N) led by their local leader Rizwan who tried to persuade them to leave PPP to join their party and to vote for their candidates, but when the Applicant and his family refused, they then left angrily.

4.  On the following day Rizwan returned with his men to the Applicant’s home, broke into the house and shot and killed the Applicant’s grandfather and uncle.  After the Applicant’s father reported the killings to the police, subsequently two of Rizwan’s men were arrested by the police and were later sentenced by the court to prison, but Rizwan was never arrested by the police, as the Applicant suspected that the local police were under his influence.

5.  One day in 2007 the Applicant’s father received a telephone call from Rizwan who threatened to kill the Applicant unless he withdrew the murder charges against him.  Aboutone month later while the Applicant was waiting for the bus at the bus stop in Gujrat, Rizwan and his men drove by in a car and shot at the Applicant with an automatic rifle but missed him and then they immediately drove away.  After the incident the Applicant reported the matter to the police but again no action appeared to have been taken by them.

6.  As the Applicant became fearful for his life, he therefore fled to Lahore to stay at his friend’s place, and then on 17 December 2007 he departed Pakistan for China, and laterhe sneaked into Hong Kong, and upon his arrest by the police he raised a torture claim, but while his claim was being processed, he received news from his family in January 2010 that Rizwan had left the country, and thinking it would be safe to return to Pakistan, he therefore withdrew his torture claim and was repatriated to Pakistan in February 2010.

7.  However, several months later when he heard that Rizwan had returned to Pakistan and was still looking for him, the Applicant therefore left Pakistan again on 17 June 2010 for Macau, and from there he again sneaked into Hong Kong and raised another torture claim, but when he was later told by his family that his mother was seriously ill, he therefore withdrew his claim and in September 2014 was repatriated to Pakistan.

8.  Upon his return home the Applicant had had no further encounter with Rizwan, butone day in early 2015 several PML(N) supporters approached him to ask him to join their party,but when he refused, they attacked him with wooden sticks and damaged things in his home.

9.  About a month later those PML(N) supporters came again and made the same demand for him to join their party, and proceeded to beat him until he fell to the ground,and before they left they threatened that next time if he still refused to join their party,they would kill him.

10.  After those men had left, the Applicant felt it was no longer safe to remain in Pakistan, and so on 22 October 2015 he departed for China, and from there he later again sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 5 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

11.  By a Notice of Decision dated 21 December 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights (“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”).

12.  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 Rizwan or those PML(N) supporters to the Applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he had been specifically targeted by his perceived enemies given the fact that he was merely an ordinary PPP supporter with no position in the party, 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 199 million people spread across a vast territory of more than 796,000 squarekilometers 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 Rizwan or those local PML(N) supporters to locate him.

13.  On 29 December 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 12 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 11 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

14.  In its decision the Board found it incredible and implausible that the Applicant’s low level involvement in PPP would result in him being so intensely targeted by Rizwan or PML(N) and for so long over so many years, that PML(N) is now in power and would have no reason to have any further adverse interest in him that it is not accepted that the Applicant had any well-founded fear of harm upon his return to Pakistan which he did on two earlier occasions after having made a torture claim in Hong Kong, and concluded that his claim for non-refoulement protection failed on all applicable grounds.

15.  On 19 July 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 his supporting affirmation of the same date and his additional submissions adduced at the hearing of his application, he put forward the following grounds for his intended challenge:

 (1)  that the Director and the Board failed to conduct inquiries from reliable sources and did not fully study the ground realities of the Applicant’s case and the aftermath that he was forced to return to his home country;

 (2)  that the Director and the Board just refused the Applicant’s claim without any reasonable ground;

 (3)  that the Director and the Board failed to recognize that in the light of new law,relocation is practicably impossible due to the fight against terrorism and that state protection is non-existence, and that their decisions betrayed a biased and formula approach and unfairly assess the danger of life;

 (4)  that the adjudicator failed to examine or give sufficient weight to the extended concept of state acquiescence;

 (5)  that the adjudicator quoted different sources to conclude that the Pakistan government has taken practical steps to protect the right of its citizens and to improve the effectiveness of its police force which were mere speculations;

 (6)  that the adjudicator failed to obtain high standards of fairness required by the Wednesbury test as the Applicant was not legally represented; and

 (7)  that the adjudicator failed to make sufficient enquiry before finalizing the decision in which the Applicant was not advised to obtain medical reports from Pakistan authorities when deciding on the seriousness of his injuries.

16.  These are however all 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 Director or the adjudicator had erred in their decisions, or what relevancy was the concept of state acquiescence to his claim, or in what way did the Director or the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to apply high standards of fairness in their assessment of his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

17.  As has been repeatedly emphasized by the Court of Appeal, 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.

18.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 34 – 44 of its decision and with the benefit of hearing him in his oral evidence and answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant with sufficient particularity, I do not find any reasonably arguable basis for him to challenge the finding of the Board.  

19.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim isa localized one and that it is not unreasonableor 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.

20.  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.

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