Ahmed Shabbir v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL 330/2017

[2019] HKCFI 665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 330 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 44-year-old national of Pakistan who entered Hong Kong illegally on 10 March 2014 and was arrested by the police on the same day.  After he was 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 supporters of rival political party Pakistan Muslim League-N (“PML-N”).  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Wah Cantonment Area, Rawalpindi, Pakistan.  After leaving school he worked in the factory until 2009 when he drove a taxi for his living, and in 2010 he became a supporter of the political party Pakistan Tehreek-Insaf (“PTI”) regularly attending their meetings and rallies.

3.In 2013 when he was participating in PTI’s campaign for the May election with his fellow supporters, they were attacked by supporters of PML-N but he managed to escape without any serious injuries.  He did not report the matter to the police.

4.Two weeks later he was approached by two PML-N members to join their party, and when he refused, they threatened him that there would be consequences.  One month later while he was campaigning with other PTI supporters, they were attacked by PML-N supporters during which the applicant was punched and kicked but did not suffer any serious injuries.  Again he did not make any report to the police.

5.After PML-N won the election and became the ruling party, the applicant heard that their supporters were taking revenge against their opposing parties including PTI and became concerned for his own safety.  One day in December 2013 while the applicant was chatting with his friends on the street, they were provoked by a group of PML-N supporters which turned into a fight but for which the applicant was not injured.  No report was made to the police.

6.However, since then the applicant would receive threatening phone calls almost every day from strangers whom he suspected to be PML-N supporters that he felt it was no longer safe for him to remain in Pakistan and departed in early March 2014 for China, and from there he sneaked into Hong Kong and lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 27 November 2015 with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 12 April 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 did not accept that the applicant was specifically targeted by PML-N supporters and assessed the likelihood of him being subjected to any real risk of being harmed by the PML-N people upon his return to Pakistan as low, that objective Country of Origin Information (“COI”) show that effective state and police protection would be available to him if resorted to, and that reliable 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 experiences to safely move to other areas away from his home district such as its capital city of Islamabad.  

9.By a Notice of Further Decision dated 31 March 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”).

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 25 April 2016, and for which he attended an oral hearing on 13 April 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 2 June 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board similarly did not accept that the PML-N people have specifically targeted the applicant or have any intention to harm or kill him as he was not any important member of the PTI but just one of its many supporters, nor did it accept that he went through all the trouble and expenses of coming to Hong Kong simply because of his presumption that the PML-N people would kill him, and that in any event Pakistan has such a large population that it would be virtually impossible for them to locate him upon his return to Pakistan.  

12.On 27 June 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 neither in it nor in his supporting affirmation of the same date did he put forward any ground for his intended challenge other than just stating that they were wrong in rejecting his claim.

13.The fact is that it has been established by both the Director and the Board in their decisions based on the facts of the applicant’s case that the risk of harm from the PML-N supporters is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to other part of Pakistan, they were perfectly entitled to find no justification to afford him non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 

14.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.

15.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 15^th day of March 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