Khan Zabit v. Torture Claims Appeal Board and Another

HCAL 1154/2018

[2019] HKCFI 2424

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1154 of 2018

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 34-year-old national of Pakistan who entered Hong Kong illegally on 26 August 2015 and was arrested by police on the same day.  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 a group of local supporters of rival political party Pakistan Tehreek-e-Insaf (“PTI”) in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Rango, District Attock, Tehsil Hazro,Punjab, Pakistan.  After leaving school he worked as a farmer in his home village, and became a supporter of the political party Pakistan Muslim League (N) (“PML(N)”) regularly attended its meetings and activities in his home village.

3.One day in early 2015 several PTI supporters from his home village approached him and warned him not to participate in the political activities of his political party anymore or else he would be killed.  They had repeated such threats to him on several more occasions but had never physically assaulted him, but when he informed his father about their threats,he was advised to leave the country to save his own life, and so in August 2015 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.By a Notice of Decision dated 10 April 2018 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”).

5.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 PTI supporters to the Applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he had ever been assaulted by them or that their threats had attained the minimum level of severity under any of the applicable risks, 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 204 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 such as Islamabad or Karachi where it would be difficult if not impossible for those PTI supporters to locate him.

6.On 23 April 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which the Board did not conduct any oral hearing and instead dealt with the appeal in the absence of the Applicant and on papers.  On 8 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board accepted the Applicant’s accounts of events occurred to him in Pakistan and hence did not find it necessary to conduct any oral hearing for his appeal,but found no evidence that those PTI supporters had ever escalated their action against the Applicant, nor any evidence to show that he was or would be a person of any special interest to PTI that would pose any real risk of harm to him upon his return to Pakistan after all these years, and that COI show that state protection and reasonable internal relocation are available for the Applicant to safely move to other areas of Pakistan away from any risk of harm from those PTI supporters that his non-refoulement claim for protection failed on all applicable grounds.

8.On 21 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and asked the Court to review his claim for the following reasons:

(1) that the Director just made assumptions about the situations in Pakistan without actually visited it when assessing his claim; and

(2) that he had been aggrieved by the decisions of the Director and the adjudicator in rejecting his claim because the ill-treatment inflicted on him had not attained the minimum level of severity.

9.The first ground is clearly not reasonably arguable, as a careful examination of the list of COI referred to in the decision, the Director did have access to the latest and materials and information on the Applicant’s home country when assessing his alleged risk of harm arising from political rivalries in Pakistan, and in the absence of any factual error being clearly shown by the Applicant in those COI relied on by the Director, I do not find any basis or merits in this complaint of the Applicant, nor do I find it reasonably arguable for his intended challenge.

10.As for his complaint about the finding of both the Director and the adjudicator that his alleged ill-treatment did not attain the minimum level of severity, it is clear from the evidence available that even on the Applicant’s own case that he had in fact never been physically assaulted by those PTI supporters, and upon which the Director and the adjudicator were entitled to make such finding in their considered decisions.  As such I do not find any reasonably arguable basis to challenge the findings of either the Director or the Board.

11.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when 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 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.

12.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.

13.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.

14.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 4^th day of December 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