Ahmad Irfaq v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 1082/2017

[2019] HKCFI 1038

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1082 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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 24 January 2015 and surrendered to the Immigration Department on the following day and 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 Muslim League (N) (“PML(N)”).  He was subsequently released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Lahore, Punjab, Pakistan.  After leaving school he joined the political party Pakistan Awami Tehreek (“PAT”) regularly attending their meetings and rallies.  In his local area there were strong support for rival party PML(N) which had led to frequent conflicts between the supporters of the two rival parties.

3.One day on 17 June 2014 the applicant together with many other PAT members and supporters held a mass protest at the Islamic Centre in Model Town in Lahore when the police marched in to disperse them during which the police fired shots indiscriminately at the protesters resulting in numerous injuries and fatalities, with the applicant together with many of his fellow PAT supporters subsequently arrested and detailed by the police for interrogation for about a week before he was eventually released.

4.On another occasion in June 2014 when the PAT was planning for another protest, about 15 PML(N) members and supporters came to the applicant’s home to demand that he asked his party leaders to call off their protest, and when the applicant refused, they beat him with wooden sticks until his neighbours intervened and brought him to the hospital where he stayed for one week.

5.Afterwards the applicant would from time to time encounter the PML(N) supporters who would either make verbal threats against him or by hanging around his house throwing stones at the windows.  To avoid further harassments from them the applicant took shelter at his aunt’s place in Sargodha, during which he was told by his family that the PML(N) supporters had on several occasions come and threw stones at his home.

6.The applicant was therefore advised by his family to leave Pakistan for his own safety, and so on 14 December 2014 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 28 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.While being released on recognizance pending the determination of his claim, the applicant was arrested by the police on 22 August 2015 for using a false identity card and taking employment without permission, for which he was subsequently convicted and sentenced to 15 months’ imprisonment.  Upon discharged from prison he later married a local resident in Hong Kong and has a small child from the marriage.

8.By a Notice of Decision dated 1 September 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then 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”).

9.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds to believe that the risk of harm from the PML(N) people is likely to materialize upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that PML(N) specifically targeted him for harm but rather that their threats were directed against rival PAT party as a whole, 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 young man to move to other part of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for those PML(N) people to locate him.

10.By a Notice of Further Decision dated 1 November 2016 the Director again rejected the applicant’s claim upon receiving and considering additional facts and submissions from him 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”).

11.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, the notice of which was filed on 9 September 2016, and for which he attended oral hearing on 26 September 2017 and 24 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 8 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board found inconsistencies in the applicant’s account of events in Pakistan, and that in any event that there is no reliable evidence that he was specifically targeted by PML(N), that their threats were simply to frighten him into abandoning his activities in support of PAT, that he has been away from his country for more than three years since he departed Pakistan makes it all the more unlikely that he would be assaulted by PML(N) supporters upon his return given the fact that his family has since his departure not experienced any disturbances from the PML(N) people, and that it would not be unduly harsh for him as an able-bodied young man to relocate to other parts of Pakistan away from his home district such as Karachi where it would be unlikely for the PML(N) people to be able to locate him.   

13.On 14 December 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 either in his Form or his supporting affirmation of the same date, in which he merely stated that as his wife has to work, he needs to remain in Hong Kong to look after their new born child.  As such and in the absence of any reasonably arguable ground put forward by the applicant, I am unable to see any basis or merits in his intended challenge. 

14.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 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.

15.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.

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 2^nd day of October 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