FARMAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 2240/2018

[2022] HKCFI 915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2240 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 36-year-old national of Pakistan who entered Hong Kong illegally on 21 March 2012 and was arrested by police on 30 October 2013. 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 the local supporters of the political party Pakistan Muslim League (N) (“PML(N)”) as he supported their rival Pakistan Tehreek-e-Insaf (“PTI”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Adurzai, District Attock, Punjab, Pakistan. He worked as a farmer in his home village, and supported PTI by regularly attending their local meetings and rallies.

3.  One day in late 2009 while he and his fellow supporters were attending a local PTI meeting, they were confronted by a group of PML(N) supporters who demanded that they joined their party, and when refused, a fight broke out between them during which the Applicant sustained headache and stomach pain which required medical treatments at a local dispensary.

4.  After another incident about a week later when he was again threatened by the PML(N) supporters that he would be killed if he still refused to join their party, the Applicant became fearful for his life and fled to Karachi where he found a job working as a restaurant waiter, but in April 2010 after he was again threatened by a group of PML(N) supporters, he felt that it was no longer safe to remain in Pakistan, and so on 16 March 2012 he departed for China, and from there he later sneaked into Hong Kong, and after his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 20 April 2016 the Director of Immigration (“Director”) rejected the Applicant’s 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, Cap 383 (“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 those local PML(N) supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to put pressure on him to join their party, that it is doubtful that the PML(N) people would still have any adverse interest in him after all these years since he left the country, 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 (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 193 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 Karachi where he had stayed before and where it would be difficult if not impossible for those local PML(N) supporters to locate him.

7.  On 2 June 2017 the Director on his own initiative invited the Applicant to submit any 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”), and in the absence of any such additional materials or facts from him in support of his BOR 2 Claim, the Director by a Notice of Further Decision dated 3 November 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

8.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of appeal which was filed on 3 May 2016, and for which he attended an oral hearing on 19 July 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 9 October 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found serious inconsistencies and discrepancies in the Applicant’s evidence as to his claim between those previously given to the Director and those given in his appeal hearing before the Board that it doubted the credibility of his claim that he fled his home country from threats from the PML(N) people, and that in any event 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 for him to move safely from his home district to join his family elsewhere without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.     

10.  On 15 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)         No reasonable basis for rejecting the Applicant’s claim;

(2)         Failure to consider the extended form of state acquiescence;

(3)         Failure to fully consider all the relevant COI in assessing the Applicant’s claim;

(4)         Irregularity of the decision-maker being a different person than the interviewing officer;

(5)         Procedural impropriety/unfairness in failing to investigate into the COI of Pakistan;

(6)         Irrationality in failing to place weight on relevant COI and instead place weight on irrelevant information;

(7)         Irrationality in failing to consider that there is a consistent system of human right violations in Pakistan;

(8)         Irrationality in failing to consider if state protection exists in Pakistan;

(9)         Procedural impropriety in failing to call for psychological and/or psychiatric reports or evaluations;

(10)     Procedural impropriety in applying the incorrect standard of proof; and

(11)     No proper basis for considering that internal relocation was available to the Applicant.

11.  These are however all just 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 Board or the Adjudicator had erred in the decision, or what relevancy was state acquiescence to his case, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why was it necessary to call for psychological or psychiatric report or evaluation for his case.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, while the hearing of his appeal before an adjudicator who was a different person from the interviewing officer during his screening process before the Director was actually a safeguard for fairness in the second-tier of the screening process of his claim by the Board and in which I fail to see how he could in any way be prejudiced or adversely affected. As such I do not find any of his proposed grounds reasonably arguable for his intended challenge. 

12.  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.

13.  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 38 - 48 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.  

14.  Furthermore, the fact is 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 if true 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.                

15.  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.

16.  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