RAHMAN ZAIWR UR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 289/2018

[2020] HKCFI 470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 289 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 35-year-old national of Pakistan who entered Hong Kong illegally on 22 August 2014 and was arrested by Immigration Department on the same day.  Afterwards he raised a non-refoulement claimon the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncleovera land dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Sirka, Attock, Punjab, Pakistan.  He did not receive any formal education and mainly worked as a farmer in his family’s farmland.

3.  Upon his father’s death his paternal uncle, a wealthy and influential man in their home village, started to covet his father’s land by demanding that the land be transferred to him with the false premise to hold them on behalf of the Applicant and his brothers untilthey reach majority, and as a result he would frequently harass and threaten the Applicant’s mother over the transfer of the land to him.

4.  When the Applicant reached the age of 17, his uncle shifted his threats and harassments towards him, and had on several occasions even had his men assaulted him by hitting him with wooden sticks that on the last occasion in 2005 the Applicant ended up in a hospital for medical treatments after a particularly severe beating.

5.  Upon his discharge from the hospital the Applicant fled to Swabi to take shelter at his friend’s place where he stayed for three months before moving on to various places such as Peshawar, Lahore and Karachi.

6.  In 2007 when he heard that his uncle was still looking for him everywhere, he decided it was no longer safe to remain in Pakistan, and so he departed for Malaysia where he stayed until 2014 when he went to China, and from there he sneaked into Hong Kong, andupon his arrest by the Immigration Department he raised his non-refoulement claim for protection, for which he later completed a Non-refoulement Claim Form (“NCF”) on 17February 2015 and attendedscreening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 7 August 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”).

8.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of him being harmed by his uncle upon his return to Pakistan as low after all these years and when the last attack took place more than 10 years ago, that his problems with his uncle was a private family dispute without 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 Islamabad where it would be difficult if not impossible for his uncle to locate him.

9.  By a Notice of Further Decision dated 24 October 2016 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”).

10.  By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of whichwas filed on 20August 2015, but for which he failed to attend an oral hearing scheduled on 29 December 2016 without any explanation, and the Board decided to deal with his appeal in his absence and on paper.  On 2 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found various discrepancies in the material aspects of the Applicant’s claim which had remained unclarified and unresolved due to his failure to attend his oral hearing that his claim as disclosed in his NCF was assessed as incredible and unreliable, that in any event with state/police protection available as well as reasonableinternal relocation alternatives that it would not be unduly harsh for the Applicant to relocate to other place in Pakistan to start a new life and to avoid the perceived risk from his uncle that his non-refoulement claim failed on all applicable grounds.

12.  On 23 February 2018 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 the following grounds for his intended challenge:

     (1)     irrationality in failure to consider the concept of state acquiescence;

     (2)     procedural impropriety in making insufficient inquiry;

     (3)     failure to provide adequate reasons as to decision made;

     (4)     procedural impropriety/unfairness in failure to investigate into the Country of Origin Information of Pakistan;

     (5)     irrationality in failure to place weight on relevant information and/or selectively placing weight on irrelevant information;

     (6)     irrationality in failure to consider a consistent system of human rights violations;

     (7)     irrationality in failure to consider if state protection exists in Pakistan;

     (8)     irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

     (9)     procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations;

    (10)     procedural impropriety in applying the incorrect standard of proof;

    (11)     no reasonable basis for rejecting the credibility of his claim;

    (12)     failure to consider the extended form of state acquiescence;

    (13)     failure to fully consider the COI reports in assessing risk to the Applicant;

    (14)     irregularity of the decision-maker being a different person than the interviewing officer; and

    (15)     no proper basis for consideration of internal relocation.

13.  These are however all 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 Board or the adjudicator had erred in the decision,or in what way was the concept of state acquiescence or its extension relevant to his case,or how did the adjudicator fail to apply the correct test on credibility or to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant,and in the absence of which I am unable to find any basis or merits in any of these grounds,or that any of them is reasonably arguable for his intended challenge.

14.  As for his complaint that his appeal before the Board was heard by someone other than the interviewing immigration officer, I fail to see the rationale for requiring his appeal to be heard by the same person, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and there is simply no basis or merit in this complaint of the Applicant.

15.  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 being 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.

16.  Furthermore, the fact 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.

17.  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.

18.  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