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

HCAL 131/2018

[2019] HKCFI 1009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 131 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 31-year-old national of Pakistan who entered Hong Kong illegally on 16 October 2008 and was arrested by police on 31 October 2008.  After he was referred to the Immigration Department for investigation, he raised 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 Peoples Party (“PPP”).  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Formulli, Hazro Tehsil, Attock, Punjab, Pakistan.  After leaving school he worked in a grocery store and later as a farmer on his family’s farmland in the village.

3.In 2007 he joined the political party Pakistan Muslim League (Q) (“PML(Q)”) regularly attending their meetings and rallies. Soon thereafter on one occasion while he was with two fellow party members on their way to a party’s rally, they were approached by several PPP supporters demanding that they quit their party to join PPP, and only when the applicant promised that they would think about their proposal that they were allowed to get on their way.

4.Sometime thereafter the applicant together with his fellow PML(Q) supporters were confronted by a large group of PPP people demanding that they quit their party to join PPP, and when they refused the two groups got into a scuffle but the police soon arrived that the applicant and his friends were able to leave the scene unhurt.

5.One day in December 2007 while the applicant was away several PPP people came looking for him at home and uttered threats to his parents that if the applicant still refused to join their party he would be killed.  Upon returning home the applicant was informed by his parents of the threats from the PPP people and was advised that he should leave Pakistan for his own safety, and so in February 2008 he departed for China where he stayed and worked for nine months before sneaking into Hong Kong in October 2008 and subsequently raised his non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 29 September 2016 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

6.By a Notice of Decision dated 9 June 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”).

7.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by those PPP people upon his return to Pakistan due to the absence of past ill-treatment from them, that it was not accepted that he had been specifically targeted by the PPP people and that after all these years that it is unlikely that they would still have any interest in him, 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 201 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 part of Pakistan away from his home district in large cities such as Lahore or Islamabad where it would be difficult if not impossible for those PPP people to locate him.

8.The applicant then 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 20 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 16 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found the applicant to be a poor witness, that the level of details provided by him in support of his claim was scant, that when he was asked to clarify or supply further details he tended to prevaricate and his answers were generally vague and devoid of supporting detail, that there were multiple material inconsistencies and contradictions between the accounts given to the Director and later to the Board, and concluded that his claim was not credible and that he has failed to establish a case in respect of any of the applicable grounds warranting protection from refoulement to Pakistan. 

10.On 29 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  irrationality in that the Board failed to consider the concept of state acquiescence;

(2)  procedural impropriety in failing to make sufficient inquiry and to provide adequate reasons for its decision;

(3)  procedural impropriety/unfairness in failing to investigate the COI of Pakistan;

(4)  irrationality in failing to place weight on relevant information and/or selectively placing weight on irrelevant information;

(5)  irrationality in failing to consider a consistent system of human right violation;

(6)  irrationality in failing to consider if state protection exists in Pakistan;

(7)  irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(8)  procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations;

(9)  procedural impropriety in applying the incorrect standard of proof; that there was no reasonable basis for rejecting his claim and credibility, failure to consider the extended form of state acquiescence, and failure to fully consider the COI reports in assessing risk to the applicant;

(10)  irregularity of the decision-maker being a different person than the interviewing officer; and

(11)  no proper basis for consideration of internal relocation.

11.These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or what relevancy were the concepts of state acquiescence or extended state acquiescence to his case, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant or inaccurate COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way did the adjudicator apply the wrong standard of proof in assessing his credibility.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and I do not see any basis or merits in any of these complaints, or that any of them can be reasonably arguable in his intended challenge.

12.As for his complaint that his appeal was heard by a different decision-maker from the Board instead of the same immigration officer, I also fail to see any rationale for insisting that his appeal before the Board be heard by the same immigration officer who had rejected his claim, as the mechanism for his appeal which is a re-hearing of his claim to be before a different person is actually a safeguard for fairness, and I do not see how that can be argued as a valid concern of procedural irregularity in his intended application either. 

13.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 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.In the applicant’s case, the Board rejected his claim based on its adverse finding on his credibility for the detailed analysis and reasoning set out in §§58 – 76 of its decision after having had the benefit of hearing him in evidence and his answers to questions raised by the adjudicator regarding his claim at his appeal hearing, and in the absence of any legal error or procedural unfairness being clearly and properly shown by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

15.Furthermore, the fact that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

16.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.

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 26^th day of July 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