ALI DANISH v. TORTURE CLAIMS APPEAL BOARD

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 be refused.

Observations for the Applicant:

1.  The Applicant is a 30-year-old national of Pakistan who entered Hong Kong illegally on 20 January 2020 and surrendered to the Immigration Department on 3 February 2020 when he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed in revenge by the family of the victim killed in the traffic accident caused by him in his home district and/or by the police for jumping bail and failing to attend the subsequent trial of the offence brought against him for the accident.

2.  The Applicant was born and raised in Faisalabad, Punjab, Pakistan before moving with his family to Lahore when he was 5 years old. After leaving school he worked as a free-lance model and actor in his home district to make his living.

3.  One day in September 2018 when he was driving his vehicle along a fast lane in his home district, he swirled to avoid hitting a man running out onto the road and instead struck and knocked down a woman on the pavement, and as he was in a panic and in fear of being arrested by the police, he then fled to Islamabad to hide in a friend’s place.

4.  Shortly thereafter he returned to Lahore and surrendered to the police when he learnt that the woman who was the daughter of a prominent local politician had subsequently died from her injuries, and that after being detained by police for interrogations for 14 days, the Applicant was brought before a court for causing the death of the victim, and was subsequently granted bail pending his trial.

5.  Soon the Applicant started to receive death threats from the victim’s family in revenge for her death, and so the Applicant became fearful for his life and departed Pakistan in October 2018 for Dubai, during which he was informed by his family that the victim’s family had come looking for him and threatened his father to disclose his whereabouts.

6.  In January 2019, the Applicant returned to Pakistan but stayed away from his home to avoid the threats from the victim’s family, nor did he subsequently attend court for his trial, and in May 2019 he again departed for Dubai where he stayed for 3 months before returning to Pakistan to again stay away from his home district to avoid the victim’s family.       

7.  On 6 November 2019, he again departed Pakistan but this time for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 29 April 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

8.  By a Notice of Decision dated 22 May 2020, 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”).

9.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that his claimed future risk of threats or harm from the victim’s family 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 of any real intention of them to seriously harm or kill him, that in any event it was a private matter between him and the victim’s family only 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 233 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 adult with working experience to move to other areas of the country away from his home district in large cities such as Karachi or Hyderabad where it would be difficult if not impossible for the victim’s family to locate him.

10.  On 11 June 2020, 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 26 August 2020 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 9 September 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision[1], the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from any family of any victim from any accident caused by him that led to him leaving his country to come to Hong Kong to seek protection, that it was not credible that he could not with the help of his family in Pakistan produce any documentary evidence such as police report of the accident, the First Information Report (“FIR”), charge sheets, court documents or records to corroborate any of his bare assertions, that there was no reliable or relevant COI to show that a daughter of the named politician had in fact died from any traffic accident as claimed by the Applicant, that on the basis of the music video produced by him showing himself performing in the video at a time when he claimed to have been pursued by both the police and the victim’s family materials appears to be contradictory to his claim that his life was then at risk of being harmed or killed by the victim’s family, that even if his claimed accident did occur and led to the death of a daughter of the named politician that there is no reliable evidence that the Applicant had any connection to or involvement in that accident that the Board concluded that he had used that incident to fabricate his claim for non-refoulement protection, that even if he was indeed somehow responsible for the death of the victim that relevant COI show that reasonable internal relocation alternatives as found by the Director to be available to him upon his return to Pakistan for him to move safely to other parts of the country away from his home district without any risk of being located by the victim’s family, and that if indeed he was being pursued by the police or Pakistani authorities for jumping bail and for his failure to attend his trial that he would be a fugitive of the law and therefore not entitled to non-refoulement protection in Hong Kong that his claim for non-refoulement protection failed on all applicable grounds.    

12.  On 15 September 2020, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)   That the Board reached the decision wrongly in assessing his non-refoulement claim;

(2)   That the Board’s decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country.     

13.  These are however just some bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case when on the factual basis of even his own case that it was a private vendetta dispute between him and the victim’s family only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant either in his Form or at the hearing of his application, I do not find either of them reasonably arguable for his intended challenge.

14.  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.

15.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as relevant COI of the situations in his home country at the relevant period, and in the absence of any error of law 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 to challenge the finding of the Board.

16.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim even if real 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 all these reasons, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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