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

HCAL 404/2018

[2020] HKCFI 88

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 404 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 44-year-old national of Pakistan who entered Hong Kong illegally on 8 August 2015 and surrendered to the Immigration Department on 13 August 2015 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed in revenge by the family of a member of rival political party killed by his brother in 1998.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Jalalpur Jattan, Punjab, Pakistan.  He did not receive any formal education, and when he was young he helped in his family’s restaurant,and in 1994 he followed in his father’s footsteps to become a supporter of the political partyPakistan Muslim League (Q) (“PML(Q)”) regularly attending its meetings and rallies, and thus frequently came into conflicts with the supporters of rival party PML(N) led by its local senior member Raza in the Applicant’s home district.

3.One day in 1998 the Applicant’s father was taken in by the police for investigation as to the whereabouts of one of the Applicant’s brothers who together with his friend was suspected to have murdered Raza allegedly over some personal dispute and had gone into hiding afterwards.

4.Several days later the Applicant was also taken by the police to the station to be questioned about his brother’s whereabouts, and when he was unable to do so, he was detained and beaten by the police with wooden sticks until on the third day when he was bailed out by a lawyer hired by his father.

5.After his release the Applicant fled to Lahore to take shelter at his friend’s place,but when he heard that the police were still harassing his family and were looking for him everywhere, the Applicant felt that it was no longer safe to remain in Pakistan, and so in late 1998 he departed for Hong Kong where he overstayed and was subsequently arrested and repatriated to Pakistan in February 1999.

6.Upon his repatriation to Pakistan, the Applicant did not return to his home district and instead stayed in various places of his friends in various cities for the next several years,during which his father was able to settle the dispute with Raza’s family with monetary compensation whereupon the Applicant’s brother was spared and the Applicant was able to safely return home and resumed his participation in his party’s activities.

7.During the general elections in 2013 there were violent conflicts between supporters of PML(Q) and the ruling PML(N) in the Applicant’s home district, during which the Applicant and his fellow supporters were on several occasions attacked by a group of local PML(N) supporters led by Raza’s son whom the Applicant suspected was trying to take revenge against him for the death of his father, but for which the Applicant did not report to the police as he believed that they were under the influence of the ruling PML(N), and after the last attack incident in April 2015 when Raza’s son yelled that it was to take revenge for his father and shot at but missed the Applicant with a gun, the Applicant felt his life was again in danger in Pakistan, and so he departed on 17 June 2015 for China, andfrom there he later sneaked into Hong Kong Hong and raised his non-refoulement claim forprotection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.By a Notice of Decision dated 10 April 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”).

9.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found his account of his political background unreliable and incredible as PML(Q) was not yet founded until 2002 so he could not have followed in his father’s footsteps to join the party in 1994 and the conflicts with PML(N) supporters and Raza which eventually led to Raza’s death in 1998, that in any event that the level of risk of harm from Raza’s family to the Applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that his problems with Raza’s family was a private personal dispute without 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 such as Karachi where it would be difficult if not impossible for Raza’s family to locate him.

10.On 21 April 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 19 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 7 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found the Applicant’s evidence wholly unreliable with glaring contradictions and inconsistencies between his NCF and his screening interview as well as his evidence in his appeal hearing, in particular as to his claim that he had followed in his father’s footsteps to become a supporter of PML(Q) in 1994 when the party was not yet founded until 2002, nor could he have then participated their meetings and rallies as alleged, or to have any conflicts with supporters of PML(N) or with their local leader Raza that led to his first departure of Pakistan for Hong Kong in 1998, all of which led to serious doubts over his alleged dispute with Raza’s family which allegedly led to his subsequent departure for Hong Kong again, and concluded that his account was a complete fabrication that his claim for non-refoulement protection failed on all applicable grounds.

12.On 13 March 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, and in his supporting affirmation of the same date he merely repeated his claim that his life is still in danger in his home country and that he would be killed if he gets sent back, and asked that his case be reviewed. 

13.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 the 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.

14.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 45 – 60 of its decision and with the benefit of hearing him in oral evidence andin answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for him to challenge the finding of the Board.

15.Furthermore, the fact is 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 unreasonableor 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 20^th day of January 2020.

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