KHAN ASMAT v. TORTURE CLAIMS APPEAL BOARD

HCAL 2089/2020

[2023] HKCFI 2336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2089 OF 2020

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of Pakistan who entered Hong Kong illegally on 3 December 2017 and surrendered to the Immigration Department on 5 December 2017 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the terrorist group Taliban. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Deolai, Swat, Khyber Pakhtunkhwa, Pakistan. After leaving school he worked as a car dealer in his home village to make his living.

3.  In about 2017 the terrorist group Taliban came to his village to seek donations and shelters for their members, but when they were rejected by the Applicant and his fellow villagers from the village council, the Taliban then made threats against them.

4.  After they were unable to seek any protection from the Pakistani authorities, the village council decided to purchase weapons and ammunition for their own protection, but after hearing about it, the Taliban escalated their threats against the Applicant and his fellow villagers, and after being shot at by some Taliban on one occasion in May 2017, and although he managed to escape unharmed, the Applicant became fearful for his life, and in September 2017 he fled from his home village to take shelter in a friend’s place in Peshawar.

5.  As he still feared of being tracked down by the Taliban, the Applicant on 1 December 2017 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 November 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 27 November 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Taliban upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for them to specifically target the Applicant for harm or that they would still have any adverse interest in him after all these years since he left the country in 2017, 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 205 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 those Taliban to locate him.

8.  On 10 December 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 29 June 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 8 October 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s claim of threats from the Taliban but found no evidence or reason for them to specifically target him amongst the villagers in his home village for harm or that they would still have any adverse interest in him after all these years since he left the country in 2017, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country away from his home district or places where the Taliban are active and without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 19 October 2020 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 to which he just attached a copy of the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for 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.

11.  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.

12.  In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decision that the risk of harm in his 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.

13.  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.

14.  Moreover, the Applicant recently filed an affirmation requesting to withdraw his application as he has been granted a dependent visa without providing any details or documentary evidence.

15.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his request to withdraw his application, I accordingly dismiss 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