Idrees Sohail and Others v. Kevin Anthony Browne, The Adjudicator of the Torture Claims Appeal Board and Another

HCAL 555/2017

[2019] HKCFI 2374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 555 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 Applicants:

1.The first two Applicants are respectively husband and wife, and the third is their daughter, all are nationals of Pakistan who arrived in Hong Kong on 30 June 2016 with permission to remain as visitors up to 7 July 2016 when they did not depart, and instead surrendered on the next day to the Immigration Department and raised a non-refoulement claim on the basis that if they returned to Pakistan they would be harmed or killed by some gangsters who were members of the political party Muttahida Qaumi Movement (“MQM”)over their dispute with the employer of the 1^st Applicant’s brother in respect of a piece of land in Karachi, Pakistan.  The Applicants were subsequently released on recognizance pending the determination of their claim.

2.The 1^st Applicant (“A1”) was born and raised in District Faisalabad, Punjab, Pakistan.  After leaving school he worked in various jobs, married the 2^nd Applicant (“A2”) and their daughter (“A3”) was born in 2005.

3.A1’s younger brother Faisal worked for a company known as HMI which owned a piece of land in Karachi on which a store was situated and managed by Faisal.  One day in 2013 some men armed with guns came to vandalize the store, assaulted Faisal and drove him out of the store which they then locked with a padlock.  A1 later learned that those men were in fact MQM members who were having a dispute with HMI over the land.

4.HMI then instituted a court action against those men and sent Faisal to court as a witness in their litigation.  As Faisal was scared he asked A1 to accompany him to court where A1 saw those men who had earlier attacked Faisal.  A1 then waited for Faisal to give his testimony and afterwards accompanied him home without any incidents.

5.However, on the same evening some men claiming to be MQM members came to A1’s home looking for Faisal, and when they could not find him, they just left.  Afterwards when A1 told Faisal about those men, Faisal became fearful and asked his employer HMI for protection, but when he was told to just carry on giving evidence in court, Faisal was under great stress and suffered a heart attack on the following day and was hospitalized.

6.After his discharge from the hospital, as Faisal felt he did not receive the necessary protection from HMI, he therefore went into hiding in Karachi, but as unknown men continued to come to A1’s home looking for Faisal with threats to kill him and his family if he failed to disclose Faisal’s whereabouts and firing shots outside his home, A1 became fearful for the safety of his family and therefore in mid-2013 moved his family to Kazim Abad in Karachi.

7.One evening in 2016 while A1 and A2 were walking on the street, two strangers attacked them with wooden sticks that A2 who was then pregnant fell to the ground and suffered a miscarriage.  After the attack A1 received threatening phone calls from men who threatened that there was no way he could escape from them and that they even knew where A3 went to school.

8.As a result A1 felt that it was no longer safe for him and his family to remain in Pakistan, and knowing that Faisal and his family had by then already fled to Hong Kong where they were making a non-refoulement claim for protection, the Applicants therefore departed on 29 June 2016 for Hong Kong where they overstayed and also raised their non‑refoulement claim, for which they completed a Non-refoulement Claim Form on 12 October 2016 and attended screening interview before the Immigration department with legal representation from the Duty Lawyer Service.

9.By a Notice of Decision dated 28 December 2016 the Director of Immigration (“the Director”) rejected the Applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their 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 MQM people to them upon their return to Pakistan as low due to the absence or low intensity and frequency of past ill-treatment from them, that the land dispute between HMI and the MQM people had already been properly dealt with by the court in Pakistan since 2013 that there was no reliable evidence that the MQM people would still have any adverse interest in the Applicants or A1’s brother, that in the absence of any official involvement that state or police protection would be available to the Applicants 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 A1 as an able-bodied adult with work experience to move with A2 and A3 to other part of Pakistan in large cities such as Islamabad where it would be difficult if not impossible for those MQM people to locate them.

11.On 6 January 2017 the Applicants filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on 25 May 2017 before the Board during which A1 gave evidence and answered questions put to him by the adjudicator for the Board.  As their claim was found to be related to the claim of his brother Faisal who was then also appealing against the Director’s decision against his claim, the Board decided to hear and deal with both appeals together. On 28 July 2017 the Applicants’ appeal as well as the appeal of Faisal were dismissed by the Board which also confirmed the respective decisions of the Director.

12.In its decision the Board found the respective claim of A1 and Faisal riddled with inconsistencies, implausibilities and improbabilities with glaring contradictions between their statements made to the Director and those to the Board that their evidence as to what happened to them in Pakistan were wholly unreliable, that it did not accept that they had any genuine fear over their safety if they were to return to Pakistan, and that in any event reasonable internal relocation alternatives would be available that there was no circumstance that would make it unreasonable for the Applicants to relocate elsewhere in Pakistan where they would not be exposed to any risk of harm from those MQM people.

13.On 24 August 2017 the Applicants filed their Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in their supporting affirmation of the same date they put forward the following grounds for their intended challenge:

(1) that the Director failed to comprehend the presence of the state acquiescence in the Applicants’ case that led to an unfair outcome of rejecting their non-refoulement claim;

(2) that the Director failed to recognize that the state should be rendered liable to the Applicants for its public officials’ inability to provide reasonable protection for its citizens under the duty of due diligence;

(3) that the Director failed to examine or give sufficient weight to the argument of extended concept of state acquiescence in assessing the Applicants’ claim;

(4) that the Director failed to consider or give sufficient weight to those COI which supported the Applicants’ case in assessing their claim;

(5) that the Director’s finding of alternative measures to seek justice in Pakistan was not based on proper COI and was merely his own speculation;

(6) that the Director failed to recognize or take into account that corruptions and incompetency of the police in Pakistan were still very serious when assessing the effectiveness of state protection for its citizens;

(7) that the adjudicator failed to make sufficient enquiry before finalizing the determination of the Applicants’ claim;

(8) that the adjudicator failed to take into consideration the seriousness of the threats made to the Applicants; and

(9) that the adjudicator failed to obtain medical evidence before deciding whether the actions of violence were severe enough to be concluded as torture in the Applicants’case.

14.These are however just very broad and vague assertions of the Applicants containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way was state acquiescence relevant to their case, orhow did the Director or the adjudicator fail to take into account relevant COI or improperly rely on COI in assessing corruptions of the police in Pakistan or the effectiveness of state protection for its citizens, or why was it necessary or relevant to consider any medical evidence in assessing whether the Applicants had been subjected to torture in Pakistan. None of these assertions were elaborated or presented with any particulars or specifics by the Applicants, and in the absence of which I do find any of them reasonably arguable for their intended challenge.

15.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 Nupur Mst v Director of Immigration [2018] HKCA 524.

16.In the present case, the Board rejected the Applicants’ claim essentially based on its adverse finding on A1’s credibility for the detailed and thorough analysis and reasoning set out in paragraphs 109 – 130 of its decision with the benefit of hearing him in oral evidence and answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicants, and upon rigorous examination and anxious scrutiny of the decision I do not find any reasonablyarguable basis to challenge the finding of the Board.

17.Furthermore, 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 Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Pakistan,there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

18.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 Applicants’ claim.

19.For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their leave application.

Dated the 18^th day of November 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