RANA SHAHZAD AHMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 284/2018

[2020] HKCFI 1512

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 284 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 36-year-old national of Pakistan who entered Hong Kong illegally on 18 January 2008 and was arrested by police on 23 January 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by supporters of rival political party Pakistan Muslim League (N) (“PML(N)”) in revenge for the killing of one of their members by the Applicant’s brother, and after his torture claim had been rejected, he raised 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 Faisalabad, Punjab, Pakistan.  After leaving school he worked in various jobs, and followed his family’s footstep to become a supporter of the political party Pakistan Muslim League (Q) (“PML(Q)”).

3.  In 2005 his mother was elected as a local councilor of PML(Q) in Dholanwala District of Lahore, and the party’s supporters held a celebration attended by the Applicant and his family, but some supporters of the opposition party PML(N) appeared at the scene which led to a confrontation between the two groups of supporters and then to a fight between them and resulted in one of PML(N) members being killed.

4.  As the Applicant’s elder brother was involved in the fight, and to avoid the subsequent police’s investigation into the death of the PML(N) member, his brother therefore fled from the town and disappeared into hiding.

5.  Sometime later the police came to look for the Applicant’s brother, and when they could not find him, they took the Applicant back to their station for interrogation as to his brother’s whereabouts for two days before releasing him after a bail was put up for him by his father.

6.  One day in 2006 the Applicant was approached by several men whom he believed to be PML(N) supporters and who tried to attack him with wooden sticks but he managed to escape without serious injuries.

7.  On another occasion in 2007 the Applicant was confronted by a group of PML(N) supporters who demanded that he disclosed his brother’s whereabouts, and when he was unable to do so, they threatened that next time if he was still unable to disclose his brother’s whereabouts, they would kill him.

8.  Fearing for his life the Applicant therefore fled to Faisalabad where he took shelter at a relative’s home, and later in the year he departed for China, and from there he sneaked into Hong Kong in January 2008, and upon his arrest he raised his torture claim which was subsequently rejected in 2011, whereupon he raised a non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 1 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.      

9.  By a Notice of Decision dated 29 August 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then remaining applicable grounds other than torture risk but included 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”).

10.  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 those PML(N) supporters to the Applicant upon his return to Pakistan as low due to the absence or low intensity and frequency of past ill-treatment from them, that after all these years that it is doubtful that they would still have any interest in him, 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 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 adult with working experience 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 those PML(N) supporters to locate him.

11.  By a Notice of Further Decision dated 8 August 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”).

12.  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 was filed on 9 September 2016, and for which he attended an oral hearing on 11 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 25 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.  In its decision the Board found the Applicant’s evidence on the account of events occurred before his departure from Pakistan disjoined, confused and inconsistent that it was not accepted that he or his family were involved in politics in Pakistan that led to him being allegedly pursued by the PML(N) supporters or the police, or that he genuinely fears repercussions from the PML(N) or any other political party whether because of his family’s involvement in politics or for any other reason should he return to Pakistan, and concluded that his claim for non-refoulement protection failed on all applicable grounds.   

14.  On 22 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, and in his supporting affirmation of the same date he recited some of the legal principles and authorities relevant to the determination of non-refoulement claims but without any elaboration as to how they would apply to his claim or providing any particulars or specifics as to any error of law or procedural unfairness in the Board’s decision other than a bare assertion that he was treated by the immigration officer with disrespect and discrimination but again without any particulars, and merely repeated his claim that he would be killed if refouled to his home country.   

15.  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 an applicant to present and articulate his claim in 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.

16.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility as to his claimed fear of harm for the thorough and detailed analysis and reasoning set out in paragraphs 38 – 56 of its decision with the benefit of hearing him in evidence and in answers to questions raised of his claim during the oral hearing of his appeal, and in the absence of any error of law or procedural unfairness in the process before the Board and in its decision, I do not find any reasonably arguable basis to challenge the finding of the Board.   

17.  Furthermore, the fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.       

18.  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.

19.  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