Junaid Khan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 581/2017

[2019] HKCFI 315

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 581 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 27-year-old national of Pakistan who entered Hong Kong illegally on 6 July 2014 and was arrested by police on 11 July 2014.  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 the family of his former girlfriend for having dated her against their wish.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Pehti, Tehsil, Hazro District, Attock Province, Punjab, Pakistan.  In 2012 he started dating a girl from the same village, but when her brother leant about their relationship he threatened the applicant with violence if he did not cease his relationship with his sister.  Thereafter on several occasions when the applicant ran into the brother he would be attacked with wooden sticks, and on the last occasion the brother even pointed a pistol at him and threatened to kill him before the applicant was able to make his escape.  The applicant however never made any report to the police as he did not believe that they would be willing to deal with such matter.

3.Eventually the applicant asked his parents to make his proposal to marry his girlfriend to her family but his proposal was rejected by her parents who warned that the applicant should stop seeing their daughter or else there would be serious consequences.  Thereafter the applicant ceased his relationship with his girlfriend but as he was still afraid of the threats from her family who were influential in the village being supporters of the ruling political party Pakistan Muslim League–Q (“PML-Q”), he therefore fled to his friend’s place in Hazro City where he stayed for several weeks without any incidents, but as he did not want to keep hiding from his girlfriend’s family, he decided to leave Pakistan which he did in July 2014 when he flew to China, and from there he sneaked into Hong Kong where he was subsequently arrested by police and lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 8 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty lawyer Service.     

4.By a Notice of Decision dated 16 May 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”).

5.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 his girlfriend’s family as low upon his return to Pakistan, that his dispute with them was a private personal matter and 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 alternatives are available to the applicant 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 him as an able-bodied young man with work experience to move safely to other areas away from his home district such as Lahore or Rawalpindi where it would be difficult if not impossible for his former girlfriend’s family to locate him.

6.By a Notice of Further Decision dated 15 February 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”).

7.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 24 May 2016, and for which he attended an oral hearing on 26 April 2017 before the Board but elected to remain silent throughout the hearing.  On 29 August 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.In its decision the Board agreed with the Director that the applicant’s dispute with his former girlfriend’s family was a private and personal matter that state or police protection would be available to him upon his return to Pakistan, and that there would be no risk of him being located by relocating to various areas in Pakistan away from his home village. 

9.On 4 September 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in the Form, and in his supporting affirmation of the same date he merely repeated his claim as follows:

“ You know already my case is refused I want to appeal in High Court. I have affair in Pakistan with a girl we was love with each other but her family don’t like me. The girl’s brother beat me already attacked me with gun but me run at the spot. Please proceed my appeal. I am against the previous decision.” [sic]

10.The applicant did not request any oral hearing for his application and accordingly no hearing was held, but up to now no ground has ever been put forward by him, nor has he identified any legal error in the Board’s decision for his intended challenge.

11.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, and that the court will not usurp their role 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.

12.Furthermore, the fact that once it has been established by both the Director and the Board 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 areas of Pakistan, they were entitled to come to their conclusion in their decisions that there is no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.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.

14.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