KHAN IMRAN v. MS GRACE MA, ESQ., TORTURE CLAIMS APPEAL BOARD

HCAL 1526/2018

[2020] HKCFI 1414

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1526 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 31-year-old national of Pakistan who entered Hong Kong illegallyon 1 March 2014 and subsequently on 13 March 2014 surrendered to the Immigration Department 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 supporters of rival political party Pakistan Muslim League (N) (“PML(N)”).  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Mallah Kalan, Tehsil Hazro, District Attock,Punjab, Pakistan.  After leaving school, he first worked as a farmer in his home village, then as a driver, and in 2011 became a supporter of the political party Pakistan Tehreek-e-Insaf (“PTI”) regularly attending their local meetings and rallies.

3.  In the 2013 general election, one day in October 2012 while the Applicant and his fellow PTI supporters were putting up banners and posters in his home village for their party’s election campaign, they were confronted by a group of PML(N) supporters which led to a fist fights between the two groups of supporters, and when some of the PML(N) supporters pulled out their guns and started firing into the air, the Applicant became fearful for his life and fled from the scene back to his home.

4.  Eventually PML(N) won the election, and during their celebrations, some of their supporters fired some shots at the PTI supporters but the Applicant managed to escape unharmed.

5.  On another occasion in August 2013 the Applicant ran into some PML(N) supporters in the village, and when they recognized him as a PTI supporter, they proceeded to attack him with wooden sticks, and before they left, they warned that they would beat him again if they saw him again in the village.

6.  As a result, the Applicant fled to Karachi to take shelter in a friend’s place, but when he saw some of those PML(N) supporters in the area, he felt it was no longer safe to remain in Pakistan, and so in October 2013 he departed 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 1 March 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 7 April 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”).

8.  In his decision the Director took into account 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) supporters in his home village upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence or reason for the PML(N) supporters to specifically target the Applicant given that he was just a supporter with no position in PTI, that after all these years that it is doubtful that they would still have any adverse 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 (“COI”) 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 Rawalpindi or Quetta where it would be difficult if not impossible for those local PML(N) supporters to locate him.

9.  On 20April 2017 the Applicant 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 6 June 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 13 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found the Applicant’s evidence regarding his claim of his PTI involvement and the alleged conflicts with the local PML(N) supporters vague, inconsistent and unconvincing and with major discrepancies in his version stated in his NCF and given to the Director that it concluded that he had invented all the claimed past incidents in Pakistan in an attempt to create a profile and basis for his claim for non-refoulement protection that his claim failed on all applicable grounds.

11.  On 1 August 2018 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) misdirection in law in that the adjudicator misdirected herself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Pakistan;

(5) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Pakistan and misdirected herself as to the extended meaning of state protection;

(6) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

(9) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.

12.  These are however all just broad and vague assertions of the Applicant containing several pages of 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 in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

13.  As has been repeatedly emphasized by the Court of Appeal, 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.

14.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

15.  Even if it is true that the hearing bundle indeed came to him late as alleged, and theApplicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation,whilst his NCF was completed on his own instructions with legal assistance, and that at hisoral hearing he never raised any issue or requested the adjudicator for further time to enablehim to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

16.  Essentially the Applicant’s claim was rejected by the Board based on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 10 – 69 of its decision with the benefit of hearing his oral testimony and his answers to questions raised of his claim during his appeal hearing before the Board, and in the absence of any error of law or procedural unfairness during his process before the Board or in its decision being clearly and properly identified by the Applicant with sufficient particularity and elaborations, I do not find any reasonably arguable basis to challenge the finding of the Board. 

17.  Furthermore, the fact 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