Khan Ramzan v. Torture Claims Appeal Board/ Non- Refoulement Claims Petition Office and Another

HCAL 881/2017

[2019] HKCFI 357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 881 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 33-year-old national of Pakistan who entered Hong Kong illegally on 20 September 2013 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by his three cousins in revenge over a land dispute.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Sirka, Hazro Tehsil, District Attock, Punjab Province, Pakistan.  After leaving school he first worked as an electrician and later as a shopkeeper.  He is single with no children.

3.In about 2013 his three cousins had a dispute with his father over the boundary separating their farmland that one day in April 2013 led to a fight between the cousins and the applicant’s brother when one of the cousins was seriously injured and had to be hospitalized.

4.After the fight the cousins made a report to the local police and as a result the applicant’s brother was arrested and was later released on bail, but when he heard from some villagers that the cousins had threatened to kill him in revenge, he fled Pakistan for Dubai where he had since remained.

5.As the cousins were unable to find his brother, they then told the villages that they would to kill the applicant instead, and although the applicant had no confrontation with the cousins, he fled to Karachi to take shelter at his friend’s place, but as his parents were still concerned for his safety as his cousins were wealthy and influential in the village with political connections as supporters of the ruling Pakistan Muslim Party (N) (“PML(N)”), they advised him to leave Pakistan, and so he departed on 17 September 2013 for China, and from there he sneaked into Hong Kong and subsequently lodged his torture claim, which was then considered as a non-refoulement claim upon the commencement of the Unified Screening Mechanism, for which he completed a Supplementary Claim Form on 23 December 2014 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

6.By a Notice of Decision dated 7 October 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 the Hong Kong Bill of Rights (“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”).

7.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 cousins upon his return to Pakistan as low due to the absence of any direct threats or ill-treatment from them in the past, that it was a private family dispute that in the absence of 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 199 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 work experience to move to other area away from his home district such as Karachi where he had stay without any incident before his departure for Hong Kong and where it would be difficult if not impossible for his cousins to locate him.

8.By a Notice of Further Decision dated 6 December 2016 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”).

9.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, and for which he attended an oral hearing on 2 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 8 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board upon hearing the applicant in evidence found his claim inherently incredible and unreliable that his cousins would want to seek revenge against him when he was not involved at all in their dispute, that in any event as the risk of harm from his cousins was confined to his home village that internal relocation alternatives are available in Pakistan, and hence that it would not be unduly harsh for the applicant to move to other large cities such as Karachi with a population of 13 million people that it would be difficult for his cousins to locate him.

11.On 14 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, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely deposed that:

“ I am not satisfied with the Decision made by the Director of Immigration and made by the Torture Claims Appeal Board. I am extremely afraid of being killed by my 3 paternal cousins. I believe that the Pakistani Government cannot protect me.”

12.The applicant did not request for an oral hearing for his application.  Accordingly no hearing was held, and up to now no ground has been put forward by him for his intended challenge, nor has he identified any legal error in either decision of the Director or the Board.

13.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 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 Re Litoun Mounsy [2018] HKCA 537.

14.The fact is that it has been established by both the Director and the Board in their respective decision 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 part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.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.

16.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 13^th 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