KHAN NASIR v. TORTURE CLAIMS APPEAL BOARD

HCAL 489/2018

[2020] HKCFI 1480

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 489 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 29-year-old national of Pakistan who entered Hong Kong illegally on 6 June 2014 and was arrested by police on 9 June 2014.  After he was referred to the Immigration Department for investigation, 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 political party Pakistan Muslim League (N) (“PML(N)”) for refusing to join their party.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Karachi, Pakistan but moved to District Attock of Punjab in 2000.  After leaving school he remained living with his family and worked as a travel agent and salesman.

3.  In 2013 after PML(N) won the general election and became the ruling party, their supporters started to harass and threaten their rival political parties, and one day in 2013 when the Applicant was on his way to the village market, he was confronted by several PML(N) supporters who demanded that he should join their party, but when the Applicant indicated his intention to follow his father’s footstep to join rival party Pakistan Peoples Party (“PPP”) instead, they proceeded to punch and kick him all over his body that he lost consciousness and was subsequently admitted to the local hospital for medical treatments.

4.  Upon his discharge from the hospital, and as the police failed to follow-up with any investigation, his parents became concerned for his safety and therefore moved the family to Lahore, but later when his father received a threatening phone call looking for the Applicant, he decided that it was no longer safe for the Applicant to remain in Pakistan, and therefore arranged for him to depart Pakistan, which he did on 25 April 2014 for China, and from there he later sneaked into Hong Kong, and upon his arrest he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 10 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 9 May 2017 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 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”).

6.  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 those local PML(N) supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, 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 201 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 young man adult with working 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 those PML(N) supporters to locate him.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the decision of the Director, and for which he attended an oral hearing on 16 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 16 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted that the Applicant may have been threatened and assaulted by some local PML(N) supporters to join their party, but doubted that they had specifically targeted him for recruitment or that they would still have any adverse interest in him after all these years, and that in any event with reasonable internal relocation within Pakistan available for him to move safely to other area away from his home district to some large cities such as Karachi without any fear or risk of being located by those local PML(N) supporters that his claim for non-refoulement protection failed on all applicable grounds.     

9.  On 26 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and while he did not request for any oral hearing, he did in his supporting affirmation of the same date put forward the following grounds for his intended challenge:

(1) that it was unreasonable for the Board not to accept that he had been tortured by PML(N) supporters despite the presence of medical evidence in support of his claim;

(2) that despite accepting the fact that he had been beaten by PML(N) supporters it was unreasonable and senseless for the Board to conclude that he would not be subject to any future risk of being harmed by them upon his return to Pakistan;

(3) that the Board failed to analyze and assess whether state protection exists in Pakistan; and

(4) that the Board failed to recognize the fact that he has married a Hong Kong resident and that he should be allowed to stay in Hong Kong to take care of his wife and their family.  

10.  These are however mainly 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 did the adjudicator fail to properly analyze the relevant COI as to state protection in Pakistan, while the Board did accept that him may have been threatened and assaulted by some PML(N) supporters but rejected his claim for the right reason that reasonable internal relocation within Pakistan was available for him, and the fact that he has married a local resident cannot be a valid basis for his non-refoulement claim.  As such I do not find any of them reasonably arguable 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.  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.     

13.  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.

14.  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