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

HCAL 1265/2018

[2019] HKCFI 1181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1265 of 2018

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 42-year-old national of Pakistan who entered Hong Kong illegally on 5 January 2016 and was arrested by 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 members of rival political party Pakistan Muslim League (N) (“PML(N)”) for refusing to join their party.  He was subsequently released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Gujranwala, Punjab, Pakistan.  After leaving school he ran a trading business in his home village, got married and formed a family with five children.

3.In 2004 he joined the political party Pakistan Peoples Party (“PPP”) and was later promoted to be a treasurer in their local ward.  In about 2011 some members of rival party PML(N) started to approach him to join their party but the applicant had always refused their invitation.

4.In about mid-2011 the applicant was arrested by police after the PML(N) members made a false complaint against him for assaulting them, and for which he was detained for two weeks for interrogation during which he was denied food and was beaten with wooden sticks.  Eventually after putting up a bail and paying bribes to the police, he was released without charge.

5.In about late 2011 or early 2012 he was arrested by police again after the PML(N) members had made another false complaint that he had committed a murder, for which he was detained for interrogation for one month during which he was again beaten by the police with wooden sticks.  Eventually he was bailed out by a lawyer hired by his family, and fearing for his own safety he fled to Karachi.

6.Whilst in Karachi he heard that the police were looking for him in his home village over a complaint made against him about some stolen vehicle, and the applicant suspected that it was his brother who had made this false claim against him due to their previous dispute over the ownership of certain family land.  The applicant was subsequently arrested and brought back to his home village in Gujranwala where he was detained by the police for two weeks during which he was again beaten with wooden sticks until he was eventually able to put up a bail and paid a bribe to the police.

7.Upon his release the applicant fled to Dubai and stayed there until 2013 when he received some threatening phone calls from PML(N) people that he returned to Pakistan but stayed in Faisalabad until early 2015 when he was arrested by police for yet another false charge made against him for assault, for which he was brought back to the police station in Gujranwala where he was detained for three weeks during which he was again beaten by the police until he was eventually bailed out by his family with bribes paid to the police, whereupon he immediately returned to Faisalabad to take shelter at a friend’s place.

8.In 2015 he returned to Gujranwala to support his party PPP in the general election, during which he was attacked by a group of PML(N) supporters.  Several days later some of the PML(N) supporters armed with guns came to his home looking for him, and when he was then not at home, these men made death threats to his family that they would kill him if and when they saw him.  Fearing that it was no longer safe to remain in Pakistan, the applicant therefore departed for China on 20 December 2015, and from there he subsequently sneaked into Hong Kong and raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 29 June 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.By a Notice of Decision dated 6 January 2017 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

10.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from those PML(N) people to the applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it is unlikely that they would still have any adverse interest in him after all these years when he first refused to join them and given his insignificant position in PPP, that 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 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 part of Pakistan away from his home district in large cities where it would be difficult if not impossible for those PML(N) people to locate him.

11.On 17 January 2017 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 8 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 27 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.In its decision the Board found most of the applicant’s case exaggerated, inherently inconsistent and illogical that it was not accepted that false claims had been made against him by any political party or for any political reasons or that he was being pursued by the police, that the only problem he might have in Pakistan was his dispute with his brother over some family land which would be at most a private family matter without any official involvement that state or police protection would be available to him, as well as reasonable internal relocation that he can safely move to other parts of Pakistan without any risk of harm from his brother.

13.On 4 July 2018 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 his Form, or in his supporting affirmation of the same date in which he merely exhibited a copy of the Board’s decision.

14.As has been repeatedly emphasized by the Court of Appeal, 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 judicial 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

15.In the applicant’s case, the Board rejected his claim of fear of harm from the PML(N) people or for any political reasons based on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 12 – 20 of its decision and with the benefit of hearing him in evidence and answers to questions raised of his claim in his appeal hearing, and in the absence of any legal error or procedural unfairness being clearly and properly identified by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16.Furthermore, the fact 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.

17.In the premises and having considered 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.

18.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 17^th day of May 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