ABBAS AZHAR v. SUSAN MARIE PINTO, ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 997/2018

[2019] HKCFI 2452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 997 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 46-year-old national of Pakistan who entered Hong Kong illegally on 14 September 2015 and was arrested by police on the following day on 15 September 2015.  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 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 Village Mora Phadial, Tehsil Kallar Syedan, District Rawalpindi, Punjab, Pakistan.  After leaving school he first worked as a farmer on his family farmland, and later started his own wheat and flour factory as well as a car‑rental business, and got married with a family of five children.

3.  In 2013 he started to support the political party Pakistan Tehreek-e-Insaf (“PTI”) and worked for them as a volunteer putting up posters and banners during elections in his home village.

4.  One day in May 2015 when he was putting up posters for PTI in the village, he was approached by several PML(N) supporters who threatened that he should stop helping PTI in their elections campaign but then left without taking any further action against the Applicant.

5.  However, about a week later when the Applicant with a fellow PTI supporter were again putting up posters in the village, they were confronted by the same group of PML(N) supporters who demanded them to pull down all the posters and then proceeded to attack during which the Applicant was knocked unconscious by some hard object and was as a result taken to the hospital where he stayed for about one month.

6.  Upon discharge from the hospital, the Applicant was told by his wife that during his hospitalization some PML(N) supporters came to his home looking for him during which they threatened her and broke items in their home before they left.

7.  As a result the Applicant went to the local police to report his complaint, but left frustrated when the police did not appear to be interested, and on his way home he met a friend who told him that he had heard that the PML(N) supporters were planning to kill him for helping PTI.

8.  Upon hearing it the Applicant felt it was no longer safe for him to remain in Pakistan, and so on 11 September 2015 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 5 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.  By a Notice of Decision dated 21 February 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 (“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”).

10.  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 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 their conflicts were common between supporters of rival political parties during election campaigns in Pakistan and that given that the Applicant was merely a volunteer helping PTI putting up posters that there is no reason or evidence for the PML(N) people to target him for harm, that in the absence of 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 770,000 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 or Karachi where it would be difficult if not impossible for those PML(N) people to locate him.

11.  On 24 February 2017 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 23 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 25 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.  In its decision the Board found inconsistencies and contradictions in the Applicant’s claimed fear of harm from the PML(N) supporters that it is not credible that him being just a volunteer worker with such a low level involvement in PTI that the PML(N) people would have such adverse interest in him, and concluded that there is no substantial ground for believing that there will be any real risk that the Applicant would be harmed by the PML(N)people upon his return to Pakistan that his non-refoulement claim failed on all applicable grounds.    

13.  On 1 June 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 put forward the following grounds for his intended challenge:

 (1) that the Director failed to take into account or give weight to the fact that the inaction of government officials can effectively hold the state liable for failing to provide reasonable protection to its citizens against risk of torture before reaching his decision on the Applicant’s claim;

 (2) that the Director failed to consider or give sufficient weight to those COI which supported the Applicant’s claim;

 (3) that the Director’s assessments that the Pakistani government has taken practical steps to monitor the conduct of the police and to improve their effectiveness with alternative avenues to seek justice in Pakistan are mere speculation as the corruption and incompetency of the police are still extremely serious;

 (4) that the adjudicator failed to apply high standards of fairness in assessing the Applicant’s claim as he was then not legally represented;

 (5) that the adjudicator erred in law in similar way as the Director as evidenced by her indifference and agreement towards the Director’s decision despite the many errors therein; and

 (6) that the adjudicator failed to make sufficient enquiry before finalizing her decision and concluding that the extent and nature of the injuries suffered by the Applicant failed to attain the minimum level severity without advising the Applicant to obtain medical reports and/or evidence from Pakistan authorities when deciding on the seriousness of the injuries sustained by him which are relevant considerations when deciding if actions of violence were severe enough to be qualified as torture.

14.  The Applicant did not appear at the oral hearing of his application and did not provide any explanation, and as the record shows that the notice was sent to his last reported address and has not been returned through undelivered post, and as the telephone calls made by court staff to him were not answered, I decided to proceed to deal with his application in his absence and on paper.

15.  His proposed grounds 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 Director or the adjudicator had erred in their decisions, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or how did the adjudicator fail to make sufficient enquiry or to apply high standards of fairness in her determination of his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, while his complaint of not being advised by the adjudicator to obtain supporting medical evidence has no basis at all when it was clearly his duty to obtain such evidence if available when he was represented by DLS during his process before the Immigration Department, and given the findings of both the Director and the Board of no reliable evidence to suggest that he had been targeted by the PML(N) people,it is not accepted that any such medical evidence even if available would have assisted or advanced his case any further.

16.  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 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.

17.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility as to his claimed fear of harm upon his return to Pakistan for the thorough and detailed analysis and reasoning set out in paragraphs 31 – 42 of its decision with the benefit of hearing him in oral evidence and in his answer to questions raised of his claim during the oral hearing of his appeal before the Board, and in the absence of any error of law or procedural unfairness in its decision being clearly and properly identified by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board. 

18.  The fact is that it has been established by the Director in his 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.

19.  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.

20.  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