RAHEES BAVER KHAN v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 381/2018

[2019] HKCFI 184

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 381 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 34-year-old national of Pakistan who entered Hong Kong illegally on 29 July 2009 and was arrested by police on 2 August 2009.  After he was referred to the Immigration Department for investigation, he lodged a non-torture claim on the basis that if he returned to Pakistan he would be harmed or killed by the head of his home village over certain land dispute, and after his torture claim was rejected, he lodged a non-refoulement claim for protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in District Attock, Pakistan.  Prior to his death in 1995 the applicant’s father owned eight kanal or units of farmland in the village but seven of which were occupied by the village head IA who refused to return them to the applicant’s father despite his repeated requests which had caused frequent conflicts between the two of them over the years.

3.  In about 2000 the applicant together with some other village elders demanded IA to return the farmland to his family but again IA refused, insisting that his father had already transferred them to him prior to his death.  The applicant’s mother therefore launched a lawsuit against IA for the farmland with financial assistance from the applicant’s uncle, and obtained judgment against IA by end of 2001.

4.  However, when the applicant’s family tried to enforce the judgment, IA applied for a stay of its execution and asked the police to arrest the applicant instead for trespassing his land when the applicant was warned by the police to stay away from IA and his land.

5.  The applicant and his family then lodged an appeal to the court in Islamabad against the stay, and eventually obtained judgment in their favour in 2007, but when they tried to execute the judgment and to recover possession of those lands, they were stopped by IA and his bodyguards armed with guns and wooden sticks, and as a result a fight broke out between the two groups during which one of IA’s bodyguards was killed and the applicant was able to flee from the scene unharmed.

6.  After the incident IA and his men were looking for the applicant for revenge and the applicant therefore went into hiding in Village Formoli which was an hour drive from his home village.

7.  During the two years of his stay in Village Formoli, the applicant was shot at by some unknown men on one occasion but he managed to escape, and on another occasion when he was riding a motorcycle he was knocked off the road by some men in a vehicle and suffered injuries to his arms and his hip.  As he suspected that both incidents were caused by men sent by IA to harm him, the applicant felt it was no longer safe to remain in Pakistan, and so with the assistance of an agent he departed for China in 2009, and from there he sneaked into Hong Kong on 29 July 2009 where he subsequently raised his torture claim with the Immigration Department, and upon its rejection in 2013 he then lodged his non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 14 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 21 April 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”).

9.  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 IA and his men to the applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no independent evidence to link IA to the two incidents during the applicant’s stay in Village Formoli, that his problem with IA was a private dispute 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 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 to move to other part of Pakistan away from his home district in large cities such as Islamabad where it would be difficult if not impossible for IA and his men to locate him.

10.  On 2 May 2017 the applicant lodged his appeal to the Torture Claims Appeal Board (“the Board”) against the decision of the Director, and for which he attended an oral hearing on 3 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 26 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found serious problems with the applicant’s evidence as to the chronology and the account of his claim, that as IA had already seized those lands for himself that there is no reason to go after the applicant after all these years as evidenced by the fact that he had been able to live in Village Formoli for two years without any serious incidents, and that it would not be unduly harsh for him to relocate to other part of Pakistan such as Lahore where any risk of harm to him would fail to the level of far-fetched and fanciful.     

12.  On 8 March 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 their decisions wrongly in assessing his non-refoulement claim;

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

(3)  that they failed to take into account of the extra-judicial killings that he may face if he was deported to Pakistan in assessing his claim under BOR 2 risk; and

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

13.  These are however all very 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 or unreasonable in assessing his claim, or how is extra-judicial killing relevant to his claim, or how did the adjudicator fail to give him sufficient time or opportunity to arrange relevant evidence in support of his claim or appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and even at the hearing of his present application now before me, he did not provide any further evidence or make any further presentation as to his claim.  In the premises I do not find any basis or merit in any of the complaints of the applicant.

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 in those 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 Re Litoun Mounsy [2018] HKCA 537.

15.  Furthermore, the fact that it has been established by both the Director and the Board in their respective decisions 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