Mohammed Zubair v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 548/2017

[2019] HKCFI 303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 548 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 the Applicant being present / absent 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 37-year-old national of Pakistan who entered Hong Kong illegally on 21 May 2009 and was arrested by police on 25 June 2012.  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 rival political party Pakistan Muslim League–N (“PLM-N”).  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in a village in Talagang, Punjab, Pakistan where his parents and siblings still live.  After leaving school he worked in various jobs as a labourer, a rickshaw driver, a school helper and a security shop operator.  He and his family were members of the Pakistan People’s Party (“PPP”) but did not hold any position in the party.

3.In 2003 the applicant came to Hong Kong and overstayed.  When he was subsequently repatriated back to Pakistan he started working as a rickshaw driver in his home village.  His disputes with PML-N started when one of its member RB asked him and his family to give their support to their member IJ in the election of the National Assembly of 2006, and when the applicant refused and subsequently broke into arguments with RB over different political views, he was threatened by RB that he would cause difficulties to him.

4.Thereafter the applicant would constantly be harassed by police while driving his rickshaw until he had to sell his rickshaw, and when RB caused the electricity supply to his home to be disrupted, he was told by his family to leave to avoid further conflicts with RB by moving to Rawalpindi where he was unable to find any employment due to RB’s influence until 2008 after he had apologized to RB and was able to find a job working as a school helper.

5.However, in late 2008 he got into another dispute with RB, IJ and their associates over certain construction problem next to his family house, and was subsequently arrested by the local police and was beaten into unconsciousness in the police station, and on the next day he was taken to the court where he was remanded in jail during which he was tortured until he had apologized to IJ and was then released on bail.

6.After his release the applicant felt it was no longer safe to remain in Pakistan and fled to Gujranwala where he made arrangements to leave for China, which he eventually did in May 2009 and from there onto Hong Kong where he subsequently lodged his non-refoulement claim after being arrested by police in 2012, for which he completed a Non-refoulement Claim Form on 15 June 2015 with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 29 March 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”).

8.In his decision the Director found no independent evidence from the applicant to corroborate his claim of events in Pakistan, that even if the threats from RB and his associates were true that their disputes were private and personal, that in the absence of any official involvement in those disputes that 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 safely to other areas away from his home district such as Islamabad where it is difficult if not impossible for RB and his men to locate him.

9.By a letter dated 17 March 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation for him 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”).

10.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 appeal he filed on 11 April 2016, and for which he attended two oral hearings on 3 April 2017 and 11 April 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 15 June 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found the applicant completely lacking in evidence and failed to prove the primary facts of his case after rejecting all his evidence of the events allegedly concerned RB, IJ, PML-N, the police and the court in Pakistan as unbelievable and unacceptable, and concluded it unnecessary to consider the issue of internal relocation alternatives as there is no reasonable likelihood of the applicant being harmed or persecuted upon refoulement to Pakistan.   

12.On 24 August 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in the Form, and in his supporting affirmation of the same date he merely exhibited a copy of the Board’s decision.  

13.Neither did he request any oral hearing for his application, and accordingly no hearing was held, and even up to now no ground has been put forward nor any legal errors identified by the applicant in support of his intended challenge.

14.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, that the proper occasion for an applicant to present and articulate such a 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 that the court will not usurp their roles as primary decision makers, and that in the absence of any legal error being identified by the applicant, judicial review is not 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; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400. 

15.In the present case the applicant’s claim was doubted by both the Director and the adjudicator for the Board, in particularly the latter which rejected his claim wholly on his credibility after hearing him in evidence in two hearings and for the detailed analysis and reasons set out in the decision, and in the absence of any legal or factual error being identified by the applicant in his application now before me, I fail to see any reason or justification interfering with the evaluations by the Director or the adjudicator as primary decision makers of the applicant’s claim.     

16.Nevertheless, having proceeded to consider their decisions 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 the part of the Director or the Board 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 1^st day of February 2019.

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