RAHEEL SARWAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 274/2019

[2023] HKCFI 487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 274 of 2019

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 the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of Pakistan who entered Hong Kong illegally on 6 January 2014 and was arrested by police on the following day. 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 a local supporter of the political party Pakistan Muslim League (N) (“PML(N)”) over some personal dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Jabbi of Arayein, Bhimbher, Azad Kashmir, Pakistan. After leaving school he assisted in his father’s mobile phone shop in his home village, and continued to live in his parents’ home.

3.  One day in 2008 two groups of supporters of rival political parties PML(N) and Pakistan Peoples Party (“PPP”) were fighting in the village, and as the Applicant who had no affiliation with either parties just stood there and watched, suddenly one of the men rushed up and struck him with a wooden stick that broke his left arm. The Applicant then fled from the scene and was later taken by his father to the local hospital for medical treatments.

4.  Several months later one day while the Applicant was working in his father’s shop, several men came into the shop, and when the Applicant recognized one of them being the man who struck him during the fight and started to confront the man, who claimed to be Tariq and a local leader of PML(N) and thought that the Applicant was one of PPP supporters, but when their exchanges became heated, Tariq and his men started to beat the Applicant with wooden sticks, again, and before they left, Tariq threatened that next time he would kill the Applicant.

5.  After they left, the Applicant reported the assault to the police, and subsequently Tariq was arrested, but after 2 days of interrogation and detention, he was released by the police without charge.

6.  After his release, Tariq and his men from time to time returned to the shop to threaten and harass the Applicant, and on one occasion they came to his house to fire shots with their pistols from outside to intimidate him, and on another occasion they even attacked the Applicant’s brother by shooting at him while he was riding his motorcycle and injured his left arm which required hospitalization for one month.

7.  Thereafter the Applicant became fearful for his life and fled to Jhelum to take shelter in his uncle’s place, and in November 2013 he departed Pakistan for China, but when he tried to sneak into Hong Kong, he was arrested and repatriated back to Pakistan.

8.  On 16 December 2013 the Applicant again departed Pakistan for China, and from there he was later able to sneak into Hong Kong, and after his subsequent arrest by the police, he then raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 30 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.  By a Notice of Decision dated 27 February 2017 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”).

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 Tariq and his followers 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 or reason for them to target him for harm given that he had no affiliation with any political parties, that in any event it was some unfortunate private personal dispute between the two of them 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 (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 201 million people spread across a vast territory of more than 770,000 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 the country away from his home district in large cities such as Lahore or Karachi where it would be difficult if not impossible for Tariq or his men to locate him.

11.  On 6 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 30 October 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 28 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.  In its decision the Board found significant inconsistencies discrepancies and implausibility in the Applicant’s evidence as to his account of events occurred to him and his family in Pakistan prior to his departure as well as serious differences from those previously given by him to the Director that it considered him to be a thoroughly dishonest witness upon whose evidence no reliance could be placed at all, and that in any event that it is not accepted that Tariq would still have any adverse interest in the Applicant over some incident occurred many years ago which did not directly involve him in any political implication that it concluded that his claim for non-refoulement protection failed on all the applicable grounds.

13.  On 29 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Director and the Adjudicator failed to make sufficient enquiry before finalizing the decision and without advising the Applicant to obtain medical reports or evidence from the Pakistani authorities which is necessary for assessing the seriousness of the Applicant’s injuries and for determining whether those injuries were caused by torture;

(2)  That the Director and the Adjudicator failed to examine or give sufficient weight to the extended concept of state acquiescence in assessing the Applicant’s case;

(3)  That the Adjudicator relied on mere speculations to conclude that the Pakistan government has taken practical steps to protect the rights of its citizens and to improve the effectiveness of its police force;

(4)  That the Adjudicator failed to attain high standards of fairness required by the Wednesbury test as the Applicant was not legally represented.

14.  These are however all just broad and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Adjudicator had erred in their decisions, or in what way did they fail to make sufficient enquiry or to take into account of relevant COI in assessing the risk of torture to the Applicant, or what relevancy is the extended concept of state acquiescence to his claim, or what COI that they relied on were mere speculations on the current reforms in Pakistan, or how did they fail to apply high standards of fairness in assessing his claim, while it is the Applicant’s own duty to decide and to seek legal advice from DLS during his process before the Director as to what necessary or relevant evidence was required to substantiate his own claim and not for the Adjudicator to give him any advice on such matter. 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.

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 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.

16.  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 65 – 84 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.

17.  Furthermore, the fact is that it has also been established by the Director in his decision 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, 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