IJAZ NAUMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 943/2018

[2019] HKCFI 2290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 943 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 30-year-old national of Pakistan who entered Hong Kong illegally on 1 February 2008 and was arrested by police on 2 February 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the family of Shehbaz in revenge for his death and/or arrested by the police. He was subsequently released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Lala Musa City, Gujrat District, Punjab, Pakistan.  He had a good friend Rizwan living in the same neighbourhood who had complained to him that his sister had been harassed by a stranger following her to school, and that he wanted to tell the man to stop harassing his sister.

3.  So one day in November 2007 the applicant accompanied Rizwan to confront the man, whose name he later learned to be Shehbaz, in front of his sister’s school, during which a quarrel broke out between them which then turned into a fist fight when Shehbaz suddenly pulled out a pistol and fired a shot at Rizwan but missed, and when Rizwan fired back with his pistol, the shot hit Shehbaz in the head and he then fell onto the ground.

4.  On seeing what happened the applicant immediately fled home and told his parents what happened, but when his parents later heard that Shehbaz had died from the gunshot wound, they told the applicant to hide in his aunt’s home in Sialkot, but later when the Shehbaz family had filed a complaint to the police claiming that both Rizwan and the applicant were involved in Shehbaz’s death and had sworn to take revenge against them, and that the police were also looking for them, his parents advised the applicant to leave Pakistan for his own safety, and so he departed on 27 January 2008 for China, and from there he sneaked into Hong Kong and raised his torture claim which was later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism,for which he later completed a Non-refoulement Claim Form (“NCF”) on 26 October 2016 and attended screening interview with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 28 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 and 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”).

6.  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 against him upon his return to Pakistan as low due to the absence or low intensity and frequency of past ill-treatment from the Shehbaz family or the police, that there was no reliable evidence that the Shehbaz family or the police were pursuing him, that in the absence of any official involvement that state or police protection would be available to the applicant from any risk of harm from the Shehbaz family, 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 parts of Pakistan away from his home district in large cities such as Islamabad where it would be difficult if not impossible for the Shehbaz family to locate him, whereas there was no reliable evidence of him being pursued by the Pakistani police for the death of Shehbaz, but if indeed that was the case it would be part of proper police procedure for criminal investigation that the applicant would be a fugitive of justice to which he would not be entitled to non-refoulement protection.

7.  On 4 January 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 19 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 18 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found discrepancies and inconsistencies in the applicant’s account of the shooting incident between the statements given in his NCF and screening interview before the Immigration Department and his evidence given before the Board,and found that he was not a witness in whom any reliance could be placed, that there was no reliable evidence that Shehbaz had in fact been killed or that his family were going after him for revenge or that the police were looking for him, and concluded that his claim failed on all applicable grounds.

9.  On 25 May 2018 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,and in his supporting affirmation of the same date he merely stated as follows:

“ I request you to re-open my refugee case that is rejected by torture claim appeal board. I want hearing on my case and please consider about it. They rejected my case because I can’t provide them proofs relevant to my case but I will try to provide you in future. So please just take my case and arrange me a hearing date so I could tell you much more.” [sic]

10.  At the oral hearing of his application the applicant did not provide any further proof relevant to his claim as he so asserted above, nor did he make any further representation or put forward any grounds or complaints that the Board had erred in its decision.  In fact,despite the Court’s invitation he claimed to have nothing further to say in respect of his intended application.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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 present case, the Board rejected the applicant’s claim based on its adverse finding on his credibility for the detailed and thorough analysis and reasons given in paragraphs 57 – 75 of its decision and with the benefit of hearing him in evidence and answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness being identified by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board. 

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