Shahzad Khurram v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 2003/2018

[2020] HKCFI 1128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2003 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 16 December 2015 and was arrested by police on 18 April 2016. 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 certain local 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 Kot Iqbal Village, Tehsil & Chakwal District, Punjab Province, Pakistan.  After leaving school, he assisted his father in farming in their home village, and became a supporter of the political party Pakistan Tehreek-e-Insaf (“PTI”) by putting up posters in his neighbourhood and by assisting villagers to vote during elections.

3.In early 2014 the Applicant and his parents started to receiving threatening calls from some unknown men demanding that he should quit PTI, and when he made a complaint to the local police, it appeared that no follow-up action had been taken.

4.One night towards end of 2014, the Applicant heard some gun shots outside his house which he suspected were warnings from PML(N) supporters for him to quit PTI.  Again when he subsequently reported the matter to the police, they did not appear to have taken the matter seriously.

5.Several days later one evening while the Applicant was on his way home from work, he was confronted by a group of PML(N) supporters who demanded that he should leave PTI, and when he refused, they proceeded to punch and kick him all over his body before he managed to make his escape and ran home.

6.Afterwards the Applicant made another report to the local police but again to no avail.  As his parents were concerned for his safety, they arranged for him to move to Karachi where he stayed in a friend’s place without further incidents, and on 21 April 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 on 10 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 15 March 2017 the Director of Immigration (“The Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under PartVIIC of the Immigration Ordinance, Cap115 (“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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by those local PML(N) supporters upon his return to Pakistan due to the low intensity and frequency of past ill‑treatment from them, that there is no reliable or objective evidence to suggest that he had been specifically targeted by the PML(N) people, 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 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Pakistan away from his home district in large cities such as Karachi where he had stayed before without incidents and where it would be difficult if not impossible for those local PML(N) supporters to locate him.

9.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 23 May 2018 before the Board with his lawyer from DLS during which he gave evidence and answered questions put to him by the adjudicator for the Board and with closing submissions made by his lawyer on his behalf.  On 24 August 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found no reliable evidence to support the Applicant’s claim of fear of harm from the PML(N) supporters or that they were connected to the state or government or that they had specifically targeted him given that he was just a local supporter of PTI with no post or office in that party, and that in any event in the absence of any official involvement that state or police protection would be available to him upon his return to Pakistan as well as reasonable internal relocation within the country for him to move safely to other area away from his home district in large cities such as Islamabad or Karachi without any risk of being located by those local PML(N) supporters that his claim for non-refoulement protection failed on all applicable grounds.

11.On 21 September 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 in his supporting affirmation of the same date he put forward various grounds for his intended challenge which may be summarized as follows:

(1)     that the Director wrongly assessed his risk of harm from his enemy by relying on state protection when in fact state protection would not be available to the Applicant in Pakistan;

(2)     that the Director and the Board wrongfully exercised their case management power by putting undue weight on the reported availability of state protection when the same COI also supported the Applicant’s case that state protection would not be available in Pakistan;

(3)     that the Director adopted an uninformed approach in wrongly rejecting his claim;

(4)     that the adjudicator failed to properly address his grounds when dealing with his appeal and instead came up with the same assessment on more or less a template basis;

(5)     that the Board failed to apply high standards of fairness or to give adequate reasons for its decision;

(6)     that the Board’s decision was unfair, unreasonable and illogical when it failed to give credence to any of the evidence and documents provided by the Applicant in support of his claim;

(7)     that it was irrational, unreasonable and unfair for the Board to reject the credibility of the Applicant’s case as it cannot be accepted that the Board could have no real doubt that his claim in Pakistan did not in fact occur;

(8)     that the Board’s decision was illogical unreasonable and unfair to reject his claim because it found that “Razzaq was only a grain wholesaler … did not mean that he could be well-connected to the government officials and police officers in area” which cannot be accepted as sufficient reason to reject his claim without taking into account other relevant facts such as the torture of his cousin, his friend’s death and the shooting of his brother;

(9)     that it was illogical unreasonable and unfair for the Board to reject his claim because he personally experienced only one incident and did not see who had fired the shot, and to find that “it was a smear attack on the police to say that the Police did not take action in respect of all the incidents because he could not identify the attackers and speculated they were PML-N workers.  There was no way in which the police could proceed to investigate when he merely said they were PML-N workers”, and that the Board failed to give any proper explanation and ignore all the facts;

(10)     that the Director failed to explain how in its balancing exercise that it relied on various COI in assessing the Applicant’s allegations with regard to state protection; and

(11)     that the Director had merely adopted a formulaic and biased approach in its reliance of COI to assess his claim when the same piece of COI was used to both support his assertion of the overall corruption in Pakistan including ineffectiveness of its police and corruption when the same information was used to show that reforms have been on-going in respect of the police in Pakistan in recent years.

12.These are however mostly just broad and vague assertions of the Applicant 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 Board or the adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the adjudicator fail to apply high standard of fairness or to take into account of relevant COI or being selective or improperly rely on irrelevant COI to assess police corruption and efficiency in Pakistan.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of any reliable or objective evidence that the adjudicator was entitled not to accept the Applicant’s hearsay information of alleged attacks on his brother or his friends by PML(N) supporters after his departure from Pakistan or to conclude that such incidents even if true were not related to his claim.  As such and in the premises I do not find any of these grounds of the Applicant reasonably arguable for his intended challenge.

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 fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his 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.

15.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.

16.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 15^th day of June 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