ZAMAN ADIL v. TORTURE CLAIMS APPEAL BOARD

HCAL 857/2018

[2020] HKCFI 2225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 857 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 31-year-old national of Pakistan who entered Hong Kong illegally on 14 August 2015 and was arrested by police on 19 August 2015. After he was released on bail, he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the Abbas family from his home town over certain political disputes with his family.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Attock District, Punjab, Pakistan. After leaving school he worked as a tailor in his home district, and followed his family’s footsteps to become a supporter of the political party Pakistan Tehreek-e-Insaf (“PTI”).

3.  One day in May 2013 his father and paternal uncle had an argument with Abbas and his son in the village over their political disputes as Abbas and his family supported rival political party Pakistan Muslim League (N) (“PML(N)”), during which Abbas shot his uncle in his arm while Abbas’s son stabbed the Applicant’s brother with a knife.

4.  After his brother and uncle were brought to the hospital for medical treatments, the Applicant reported the matter to the police.  As a result the Abbas family had threatened to kill him, and fearing for his life, the Applicant therefore fled to Lahore and later to Karachi where he had stayed and worked without further incidents, but as he still feared that the Abbas family could locate him, he decided it would not be safe to remain in Pakistan, and so on 14 July 2015 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 2 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 23 January 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 the Abbas family upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that his claim is mainly based on hearsay instead of objective and reliable evidence or real and personal experience, 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 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 adult with working experience to move to other part of Pakistan away from his home district in large cities such as Sialkot or Faisalabad where it would be difficult if not impossible for the Abbas family to locate him.

7.  On 6 February 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 8 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 23 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found the Applicant’s evidence of fear of harm from the Abbas family over political dispute with his family vague and unbelievable, but accepted that even if there were indeed disputes between the two families with threats against him that in the absence of any official involvement that state/police protection would be available to the Applicant upon his return to Pakistan, as well as reasonable internal relocation within Pakistan for him to move safely to other area away from his home district without any risk of being located by the Abbas family that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 17 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 repeated his claim that he would be killed by the Abbas family upon his return to his home country but without putting forward any proper grounds for his intended challenge, nor did he request any oral hearing for his application.

10.  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.

11.  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 paragraphs 29 – 38 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.  

12.  Furthermore, 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