ILYAS REHMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 177/2018

[2020] HKCFI 998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 177 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 43-year-old national of Pakistan who arrived in Hong Kong on 27 May 2016 with permission to remain as a visitor up to 10 June 2016 when he did not depart and instead overstayed and was arrested by police on 5 August 2016.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his brother and his brothers-in-law over some family disputes.  He has since been released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in in Sialkot City, Punjab, Pakistan.  Since when they were small his younger brother Adnan started to become bitterly jealous of the Applicant as being their parents’ favorite son, and on one occasion in 1992 when they were in their teens and were playing on the roof-top of their three-storey home, Adnan pushed the Applicant off the roof that he suffered multiple fractures to his arms and legs.

3.  On another occasion when the Applicant was given a new motorcycle by his parents for good examination result, Adnan would later set it on fire and burnt it.

4.  In 2009 Adnan married a girl whose family had close connection with the political party Pakistan Muslim League (N), and he also became a supporter of that party.  

5.  As years went by, the jealousy and hatred of Adnan towards the Applicant intensified, but their parents always insisted that they should make peace and trust each other, and so when the Applicant started his own business in money-exchange, he allowed Adnan to assist him in his business.

6.  In 2014 the Applicant took a trip to Dubai and let Adnan ran the business in his absence including operating the business accounts.  However, when the Applicant returned to Pakistan one month later, he discovered that all the money in the accounts had gone, of which Adnan explained were all lost in the business.

7.  The Applicant did not believe his explanation and called for a meeting between the two families, during which he and Adnan had a heated argument over the ownership of the family house when Adnan and his in-laws started to attack the Applicant with punches and wooden sticks that he lost consciousness.

8.  When he eventually came to, the Applicant found that police had arrived to arrest himas Adnan’s in-laws had made a complaint that the Applicant had assaulted them.  Eventuallythe Applicant was released by the police without charge, but he then started to receive phone calls from some unknown man threatening to kill him if he refused to give up his share in the family house to Adnan.

9.  Fearing for his life the Applicant fled to Lahore and then to Islamabad.  Eventually his father stepped in to resolve the dispute by transferring the family house to the Applicant. As a result the Applicant returned to live in the family house after Adnan and his family had moved to Gujranwala City.

10.  One day in January 2016 when the Applicant drove with his family to Gujranwala City to attend the wedding of a relative, he ran into Adnan and his family at the parking lotwhen Adnan’s in-law suddenly pulled out a gun and shot at his car.  Although nobodyin the car was seriously hurt the Applicant and his family were so frightened that he turned the car around and fled home.

11.  After the shooting incident the Applicant feared that Adnan would come after him,and so he approached a friend in Dubai for help, and his friend advised that he could come to Dubai to join his business in selling surgical instruments, but as he was due to attend a business exhibition in Hong Kong soon, he suggested that they should meet up in Hong Kong while his friend meanwhile would work on getting a visa for him to go to Dubai.

12.  The Applicant therefore departed Pakistan on 27 May 2016 for Hong Kong, but then he received a call from his friend in Dubai that his friend was unable to get the visa for the Applicant to go to Dubai, and as he had some urgent matter to attend, he would not be coming to Hong Kong after all.  As the Applicant was afraid to return to Pakistan due to Adnan’s death threats, he therefore overstayed in Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

13.  By a Notice of Decision dated 20 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 (“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”).

14.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial reasons to believe that the Applicant would be in danger of being harmed by Adnan or his in-laws upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that that the conflicts between them was a private family 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 show that reasonable internal relocation alternativesare 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 work experience to move to other part of Pakistan away from his home district in large cities such as Lahore or Islamabad where it would be difficult if not impossible for his brother or his in-laws to locate him.

15.  The Applicant then 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 18 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 26 January 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

16.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s account of events occurred prior to his departure from Pakistan that casted doubt on the credibility of his claim, but even accepting that the account were true that the Applicant would still not be entitled to non-refoulement protection given the availability of state and police protection and internal relocation that he can safely relocate to other parts of Pakistan without any risk of being located by his brother or his in-laws. 

17.  On 6 February 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 or in his supporting affirmation of the same date in which he merely stated that he was arranging for more evidence from his home country in Pakistan in support his claim.

18.  On 28 May 2018 he wrote to court and gave the following information:

“ As I have mentioned in my previous submission that due to political pressure I had to escape from Pakistan. The politician and criminal named Khwaja Asif, Minister of Foreign Affairs, has created a lot of nuisance in the city, he is a corrupt minister. Recently, the Islamabad High Court of Pakistan, (charges were proved) declared him a corrupt minister and he was suspended from his duties.

Moreover, after his suspension, nothing has changed.  As he is criminal politician, he is soon going to form his independent political party and he wants to kill the people (including me) who were whistle blowers of his corruption, criminal and illegal activities.  It’s because of people like us he lost his position.”

19.  Even if what the Applicant claimed in his letter about certain corrupt politician in Pakistan were true, and he did not produce any supporting documentary evidence, I fail to see their relevancy to his claim which was even on his own case a private family dispute with his brother which had absolutely nothing to do with the political situation in Pakistan.    

20.  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 Nupur Mst v Director of Immigration [2018] HKCA 524.

21.  In the Applicant’s case, he has failed to provide any grounds for his intended application, nor has he shown any error in law or procedural unfairness in the Board’s decision, and in the absence of which I do not find any reasonably arguable basis to challenge the findings of the Board.

22.  Furthermore, the fact 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.

23.  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.

24.  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