KHAN SAGHIR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1547/2020

[2023] HKCFI 2181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1547 OF 2020

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 24-year-old national of Pakistan who entered Hong Kong illegally on 21 November 2019 and surrendered to the Immigration Department on 7 January 2020 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by certain local leader of the political party Pakistan Muslim League (N) (“PML(N)”) as he quitted the party to join rival Pakistan Tehreek-e-Insaf (“PTI”).

2.  The Applicant was born and raised in Village Shinka, Tehsil Hazro, District Attock, Punjab, Pakistan. After leaving school he remained financially dependent on his father who was a farmer, and started to support PML(N) and assisted their local leader in his home village without holding any official post in the party.

3.  However, in 2019 he became disappointed with some of the actions of the local PML(N) leader and started to shift his support for PTI, and when he refused to change his mind about quitting PML(N), their local leader then confronted him with death threats should he leave the party, and one day while he was in the village bazar, he was attacked by some masked men that he lost consciousness and was taken to the hospital for medical treatments.

4.  After his discharge from hospital, the Applicant suspected that his assailants were sent by the local PML(N) leader to teach him a lesson, for which he became fearful for his life, and so on 10 November 2019 he departed Pakistan for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 March 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 16 April 2020 the Director of Immigration (“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 Ordinance, Cap. 383 (“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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by those local PML(N) people upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there was no evidence or reason for them to specifically target him for harm due to political reason given the fact that he was just a young ordinary supporter without holding any official post in either parties, that in any event 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 207 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 a young able-bodied adult to move to other areas of the country away from his home district in large cities such as Karachi where it would be difficult if not impossible for those local PML(N) supporters to locate him.

7.  On 24 April 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he wrote to state that he would not attend any oral hearing before the Board, and so the Board proceeded to deal with his appeal in his absence and on paper, and on 17 July 2020 it dismissed his appeal and also confirmed the Director’s decision.

8.  In its decision the Board found inconsistencies and contradictions in the Applicant’s evidence which he failed to explain or clarify with any oral evidence which indicated his claim to be realistic that he would face any harm upon his return to Pakistan, and that in any event in the absence of any official involvement that state or police protection would be available to him upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 23 July 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Board reached the decision wrongly in assessing the Applicant’s non-refoulement claim in that the decision was not reasonable or fair as required by the Wednesbury test;

(2)  That the Board failed to recognize that the right to life must be protected by the criminal law from extra-judicial killings that the Applicant may face if deported back to his home country.

10.  These are however just some vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable, or what relevancy was extra-judicial killings were to his claim even on his own case that there was no legal basis for such fear. As such and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

11.  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.

12.  In the Applicant’s case, 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 his 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.

13.  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.

14.  Furthermore, the Applicant has recently filed an affirmation requesting to withdraw his application as it is no longer necessary for him to claim asylum in Hong Kong but without any further necessary or relevant details or reasons why.

15.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of withdrawing his application, I accordingly dismiss 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