Zaman Sheikh Muhammad Sarfraz v. Jane Curzon Lo, and Others

HCAL 927/2017

[2018] HKCFI 2096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 927 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 44-year-old national of Pakistan who entered Hong Kong illegally on 21 January 2016 and was arrested by police on the same day.  After being referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by certain members of the political party Pakistan Muslim League–Nawaz (“PML-N”) for leaving their party to join rival Pakistan Tehreek-e-Insaf (“PTI”).  

2.The applicant was born and raised in Sialkot District, Punjab, Pakistan where his wife and family still reside.  After leaving school he ran a convenient store, got married with a son, and became a supporter of PML-N without holding any official post and simply asked people to vote for the party during elections in his home district.

3.In 2015 as he became disappointed with PML-N, he decided to switch his support for PTI, and again he held no official post in the party and only participated in their election campaigns.

4.One day in mid-2015 he received a call from a member of PML-N to ask him to leave PTI and to return to support PML-N, but he refused and cut off the call.

5.Two months later while on his way home from work, he was stopped by several men who claimed that they would teach him a lesson for supporting PTI and proceeded to hit him with wooden sticks until they were intervened by some passers-by.

6.After the incident the applicant reported the matter to the local police, but several days later when he returned to the police station to check on the progress of the investigation, he was arrested as a complaint was made against him by the PML-N members for starting the fight. He was then detained at the station for several days during which he was punched and kicked by several policemen until he agreed not to support PTI anymore and was then released.

7.A few weeks later several policemen came to his home to beat him up again so as to remind him not to support PTI, and before they left they also broke some of the windows of his house.  The applicant suspected that these policemen were influenced by PML-N to act against him. 

8.In late 2015 during a local election the applicant received a phone call from an unknown man who threatened to kill him unless he stopped supporting PTI and to join PML-N.  As he became concerned for his safety he took shelter at the home of a PTI member for two weeks before returning home when he was advised by his family to leave Pakistan for his own safety, and so he departed in January 2016 for China, and from there he sneaked into Hong Kong, and upon his arrest he raised his non-refoulement claim for which he completed a Non-refoulement Claim Form on 25 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.By a Notice of Decision dated 10 June 2016 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”).

10.In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and found no reason to believe that he being only a supporter with no official position in PTI would be so targeted by the rival party, that his arrest and detention by the local police were the acts of individuals with no reliable evidence of any official involvement and hence reasonable state protection would be available to him 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 199 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 area away from his home district such as Karachi where it would be difficult if not impossible for those PML-N people to locate him.  

11.By a Notice of Further Decision dated 29 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit 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”).

12.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which notice he filed on 21 June 2016, and for which he attended an oral hearing on 28 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 25 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.In its decision the Board accepted the applicant’s assertion of dispute with and threats from certain local members of PML-N for his switch of support to PTI, but found that he had exaggerated the abuses he received from them and from the local police, that his actions were inconsistent with his claimed fear, and that in any event reasonable state protection will be available upon his return to Pakistan where he can also relocate to other cities away from his home district such as Islamabad or Lahore where he will not face any real risk of harms under any of the applicable grounds.

14.On 22 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 it he put forward various grounds for his intended challenge which can be summarized as follows:

(1)  that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence of his torture by the police in the consideration of his claim;

(2)  that the Director failed to consider or give sufficient weight to the relevant COI on the inability of the police in Pakistan to protect its citizens in the consideration of his claim;

(3)  that the Director was being unfairly and improperly selective in the use of COI against his claim and failed to find that corruption and incompetency in the administration is still a very serious problem in Pakistan in the consideration of his claim;

(4)  that the Director failed to attain high standard of fairness in the consideration of his claim; and

(5)  that the adjudicator failed to make sufficient enquiry before finalizing her decision and failed to give sufficient chance to the applicant to arrange relevant evidence to support his non-refoulement claim and in his appeal.  

15.These are all very 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 Director or the adjudicator had erred in their decisions, or in what way did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the adjudicator fail to make sufficient enquiry or fail to give him sufficient opportunity to produce evidence in support of his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

16.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, for which the court will not usurp their role as primary decision makers, and in the absence of any legal error or procedural unfairness or irrationality being identified by the applicant in their decisions, judicial review is not to be treated as an avenue for revisiting the assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

17.As to the additional COI produced by the applicant in his supporting affirmation of the same date as to the general situations of police abuse and human rights violation in Pakistan, which were never produced before the Director or the Board, the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return: see Re RS CACV 206/2012, 20 August 2013; and Re Fitri Ambarwati and Maria Zubair [2018] HKCA 461.  As found by both the Director and the adjudicator, there is no basis to accept that the applicant would face any real risk of such harms or abuse upon his return to Pakistan.  

18.Further, as it has been established by both the Director and the Board in their decisions 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 another part of Pakistan, there is simply no justification to afford him non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19.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.

20.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 14^th day of September 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