JAVED ZAKIR v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 189/2018

[2019] HKCFI 928

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 189 of 2018

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 26-year-old national of Pakistan who entered Hong Kong illegally in late 2013 and was arrested by police on 2 December 2013.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the Taliban.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Barazai, Attock, Pakistan.  After leaving school he worked as a farmer and lived with his parents and siblings in his home village.

3.  One night in late 2013, several armed men with their face covered broke into the applicant’s home to rob them, and when the applicant’s elder brother tried to put up resistance he was shot dead by them.  After they had taken all the valuables in the house, the men demanded the applicant to join their group and to go with them, and when the applicant was reluctant, they threatened to kill him.  It was only after the applicant had pleaded with them that he needed time to prepare that they agreed to leave without him but warned that they would be back for him in the future.

4.  Afterwards the applicant’s family buried his elder brother and his father then reported the matter to the police, but when the applicant learnt that the police were not helping, and when he told his friends about those men whom he suspected were members of the Taliban as they wore turbans with beard and spoke Pushto, his friends advised that he should leave Pakistan to save his own life as the Taliban had a wide network and could locate him anywhere in Pakistan, the applicant therefore departed on 25 November 2013 for China, and from there he sneaked into Hong Kong and subsequently lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 8 January 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 31 August 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 risk of harm to him upon his return to Pakistan as low in the absence of any evidence that those men were indeed Taliban other than the applicant’s own speculation, that there is no evidence that those men had any real intention to harm or kill the applicant, that the incident was a robbery and a murder 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 199 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 to move to other areas away from his home district in large cities such as Islamabad where it would be difficult if not impossible for those men or the Taliban to locate him.

7.  By a letter dated 23 March 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which he filed on 12 September 2016, and for which he attended an oral hearing on 18 January 2018 before the Board during which he adopted those documents in the hearing bundle as his evidence but generally refused to answer questions put to him by the adjudicator for the Board.  On 2 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found material facts and information in the applicant’s claim implausible, inconsistent and unreliable which affected his credibility and the reliability of his evidence but which he declined or failed to explain or clarify at his oral hearing, that it did not accept that the Taliban had killed his brother or threatened him to join them, or that they would still have any adverse interest in him after all these years, and that it was not convinced that the applicant’s departure from Pakistan for Hong Kong was caused by the threats from the Taliban, and that in any event even if such threats were true and still persisted after all these years that reasonable internal relocation options within Pakistan is available to the applicant as an able-bodied young man to move safely to other areas away from his home district where it would be difficult if not impossible for the Taliban to locate him even if they were willing to expend their resources or manpower to do so.

10.  On 8 February 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 in it he put forward the following grounds for his intended challenge:

(1)  that the Director and the adjudicator reached the wrong decision in assessing his USM claim;

(2)  that their decisions were not reasonable or fair as required by the Wednesbury test;

(3)  that they failed to take into consideration that the right to life must be protected from extra-judicial killings which the applicant may face if departed to Pakistan; and

(4)  that the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal.  

11.  These are however all 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 were their decisions unfair or unreasonable under the Wednesbury test, or what relevancy were extra-judicial killings to do with his case.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

12.  As for his complaint of not being given sufficient time or opportunity to adduce his evidence in support of his claim in his appeal before the Board, he never raised this issue with the adjudicator at his oral hearing, nor did he request for further time to enable him to do so.  Even in his application now before me he did not produce any additional evidence or make any further presentation of his claim other than those stated in his Form and supporting affirmation.  In the premises I do not find any merit in this complaint of the applicant either.

13.  The fact is that his claim was rejected essentially on his credibility by the adjudicator with the benefit of hearing him at his oral hearing and on the evidence available to him and for the detailed analysis and reasons as set out in paragraphs 29 – 31 of his decision but in which the applicant has failed to identify any legal errors or procedural unfairness or irrationality for his intended challenge.

14.  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 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 Re Nupur Mst [2018] HKCA 524.

15.  Furthermore, as it has also 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.

16.  In the premises and having proceeded to consider 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.

17.  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