Shehzad Amran v. Torture Claims Appeal Board and Another

HCAL 894/2017

[2018] HKCFI 1378

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 894 of 2017

BETWEEN

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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 32-year-old national of Pakistan who entered Hong Kong illegally on 7 August 2009 and was arrested by the police on 10 August 2009.  After he was referred to the Immigration Department for investigation, he raised his torture claim on 12 August 2009 on the basis that if he returned to Pakistan he would be harmed or killed by his girlfriend’s brothers who were against their relationship due to his different political affiliation.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Jalalpur Jattan, Gujrat, Punjab, Pakistan to a family of supporters of the Pakistan People Party (“PPP”) in which his father was a member, and hence the applicant and his brother also became supporters when they were teenagers.   

3.In 2000 the applicant started dating his girlfriend AM whose father also knew his father and were on good terms with each other although AM’s family supported rival political party the Pakistan Muslim League (N) (“PML(N)”).  However in about 2005 the father of AM had a serious dispute with the applicant’s father over political issues and started to oppose AM seeing the applicant, but to which they refused to listen.

4.One day in May 2005 when the applicant and AM ran into her two brothers on the street, her two brothers threatened the applicant to stop seeing their sister, but one day in August 2005 when they were seen together again by the brothers, the applicant was assaulted by them until they were stopped by passers-by when the brothers threatened to kill the applicant next time if he did not stop his relationship with AM.

5.After the incident the applicant reported the matter to the police but they refused to do anything, but then one day in September 2005 while the applicant was riding his motorcycle in the village, he ran into AM’s brothers who started shooting at him with their pistols, and although the applicant was able to get away unhurt, he was so shaken by the incident that he took shelter at his friend’s place in Karachi until January 2006 when he thought it was safe to return home.

6.Then one day in late January 2006 when the applicant and his friend ran into AM’s brothers on the street, he was assaulted by them with punches and kicks until they were stopped by passers-by and fled, of which the applicant reported to the police but again they failed to follow up with any action.  Fearing for his safety the applicant decided to leave Pakistan and came to Hong Kong in July 2006 where he overstayed and raised a torture claim, but in December 2008 when he was told by AM that her family was no longer against their relationship, he therefore withdrew his claim and returned to Pakistan on 16 December 2008.

7.However, one day in June 2009 while he was on his way home from the market, he was knocked down by a car driven by AM’s brothers who then sped away.  After the applicant was discharged from the hospital for treatments to his injuries, he reported the incident to the police who again failed to follow up with any investigation.  When he later learnt from AM that it was her brothers’ tricks to lure him back to Pakistan so that they could kill him, the applicant therefore left Pakistan for his own safety for China in July 2009 and from there he again came to Hong Kong on 7 August 2009 and subsequently lodged his torture claim, and later completed his Non-refoulement Claim Form on 6 November 2014 with legal representation from the Duty Lawyer Service. 

8.By a Notice of Decision dated 19 June 2015 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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”).

9.In his decision the Director found no substantial grounds to believe that the applicant’s perceived risk of harm from AM’s brothers upon his return to Pakistan is real and foreseeable, that in any event it arose from a private and personal dispute without any involvement of the state or police that state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 million people spread across a vast territory of more than 796,000 square kilometers in areas other than his home district such as Karachi where it would not be unduly harsh for the applicant as an able-bodied adult to live and work without fear of any risk from AM’s brothers.   

10.Upon receiving and considering further representation from his lawyer of further phone calls from the applicant’s girlfriend that the threats from her brothers still remained despite his arrival in Hong Kong, the Director by a Notice of Further Decision dated 16 June 2017 again rejected the applicant’s 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”).

11.By then the applicant was already in the process of his appeal to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, for which he filed his appeal on 2 July 2015, and attended two oral hearings on 18 July 2016 and 19 September 2017 before the Board during which he confirmed his claim as set out in the documents of his hearing bundle and gave further evidence and answered questions put to him by the adjudicator for the Board.  On 30 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board found the applicant’s claim just his bare assertions unsupported by any reliable evidence or were based on hearsay as set out in details in paragraphs 74 – 93 that it was unable to attach any weight to his evidence, and that on the totality of the evidence it was not persuaded that the applicant had a relationship with AM or that he was assaulted by her brothers because of their relationship, and that even to the low standard required that there is any real risk that he would suffer harm from them upon his return to Pakistan.

13.On 16 November 2017 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 ground for his intended challenge:

(1)  lack of legal representation in his application for judicial review; and

(2)  wrongful exercise of case management in the adjudicator’s failure to properly consider his grounds of appeal or of the relevant COI in the consideration of his claim.

14.Ground (1) is a non-starter as it was not even an issue in any of the proceedings before the Director or the Board when on his own case that he had had legal representation throughout his claim before them, and the fact that he has no legal representation in his application for judicial review now before me cannot be a subject matter for review in this application.

15.As for his ground (2) of the Board not properly considered his claim or relied on relevant COI, the applicant did not provide any particulars or specifics or elaborations as to how the Board had erred in the process.  Given the fact his claim was essentially rejected by the Board on credibility with the benefit of hearing him in evidence on two occasions, it is well established that the evaluation of evidence is essentially a matter for the Director and the adjudicator who are entitled to do so on the facts and evidence available to them which the court will not usurp their role as the primary decision-makers, and in the absence of any particulars or specifics from the applicant to demonstrate as to how and where the Board got it wrong either as to facts or evidence in its evaluation, I find there is no basis or merit at all in this ground of the applicant.

16.In the premises and having proceeded to consider 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.

17.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.

Dated the 22^nd day of June 2018.

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