RUSTAM KHAN AND ANOTHER v. IMMIGRATION DEPARTMENT

HCAL 838/2018

[2020] HKCFI 1431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 838 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 Applicants:

1.  The 1^st Applicant (“A1”) is a 40-year-old national of Pakistan who entered Hong Kong illegally on 12 February 2006 and surrendered to the police on 4 December 2006.  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 man who blamed him for the suicide of the man’s sister, and while being released on recognizance pending the determination of his claim, he married his wife in Hong Kong who subsequently gave birth to his son, the 2^nd Applicant (“A2”) for whom he also raised a similar claim on the same basis and which was jointly determined together with his claim.

2.  A1 was born and raised in Village Kamel Par Alam, Tehsil and District Attock, Pakistan.  Whilst at school he became a supporter of the extremist religious organization Sipah-e-Sahaba and was sent to Afghanistan for military training for three months.  Upon completion of the training he returned to Pakistan to work in his father’s farm, and later he worked as a school bus driver in his home village.

3.  In December 2005 his family arranged for A1 to marry his cousin.  On the day before his engagement, a female student on his school bus, Shaista, came to his home to tell his parents that she liked A1 and wanted to marry him, and when his parents told her that A1 had already been arranged to marry his cousin, Shaista became very upset and left.

4.  On the next day A1 became engaged to his cousin.  On the same evening he was told by his friend that Shaista had committed suicide, and that her family had blamed him for her death.

5.  Several weeks later, one day when A1 was on the street, he was confronted by Shaista’s elder brother Insar, who was a local police officer, together with several of his men who then proceeded to beat A1, but A1 managed to make his escape without seriously hurt, and while he was running away from the scene, he heard a gunshot from behind but he was too scared to turn around to see who fired the shot.

6.  Shortly after A1 had fled home, Insar together with several policemen came to his house and told his father that they were looking for A1 for suspicious connection with the Taliban terrorist organization due to his past involvement with Sipah- e-Sahaba, but A1 managed to escape from the back door to hide in his aunt’s house in the neighbourhood.

7.  A1 believed that Insar was trying to take revenge against him for his sister’s death by making a false claim against him, and fearing for his life, he therefore fled to Wah Cantt to take shelter in his friend’s place before moving to Islamabad where hemade arrangement to leave his country, which he eventually did in February 2006 when he departed for China, and from there he later sneaked into Hong Kong and raised his torture claim later taken as a non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 17 July 2014, and later upon the birth of A2 he also raised the same claim for him and completed a Non-refoulement Claim Form on his behalf on 16 June 2016, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 1 September 2016 the Director of Immigration (“the Director”) rejected the Applicants’ claim on all then 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 Ordinance (“HKBOR”), Cap 383 (“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 Applicants’ claim and assessed the level of risk of harm from Insar and his men upon their return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that Insar’s action against A1 was anything other than his personal vendetta against him without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objectiveCountry of Origin Information 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 A1 as an able-bodied adult with work experience to safely move with A2 to other part of Pakistan away from his home district in large cities such as Islamabad or Lahore where it would be difficult if not impossible for Insar or his men to locate them.

10.  By a Notice of Further Decision dated 25 July 2017 the Director again rejected the Applicants’ claim in the absence of any response from them to an earlier invitation to submit additional facts which may be relevant to their 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”).

11.  By then the Applicants were 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 was filed on 9 September 2016, and for which A1 attended an oral hearing on 2 February 2018 before the Board during which he gave evidence but was reluctant to answer questions raised of his claim by the adjudicator for the Board.  On 8 May 2018 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board found inconsistencies in A1’s evidence on his claim but which he declined to answer or clarify and that what remained of his claim was based mainlyon hearsay and speculation that his claim was unreliable and incredible, that in any event there were no state agents involved in the claimed threats against him that state or police protection would be available to him and A2, and that with reasonable internal relocation available within Pakistan for A1 to move safely with A2 to other cities away from his home district that the Applicants’ claim for non-refoulement protection failed on all applicable grounds.

13.  On 14 May 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date, he merely stated that he would like to reject and review the decision in rejecting his case by disregarding his dangerous situation back home in Pakistan but without providing any particulars or elaborations how it did so.  As such and in the absence of any valid ground or complaint of error of law or procedural unfairness in the Board’s decision being shown by the Applicants, I do not find any reasonably arguable basis for their intended application.  

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 Applicants’ case, the Board rejected their claim essentially on its adverse finding on A1’s credibility for the thorough and detailed analysis and reasoning set out in paragraphs 71 – 86 of its decision with the benefit of hearing him in his oral testimony during his appeal hearing together with the inconsistencies and problems in his claim which he declined to answer or clarify, 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 Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.  

16.  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 Applicants’ claim isa localized one and that it is not unreasonable or unsafe for them to relocate to other part of Pakistan,there is simply no justification to afford them 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 Applicants’ claim.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their 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