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

HCAL 253/2018

[2020] HKCFI 1325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 253 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 26-year-old national of Pakistan who entered Hong Kong illegally on 5 July 2014 and was arrested by police on 4 August 2014.  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 his former girlfriend’s familymembers who were against their relationship.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in a village in Islamabad, Pakistan.  In 2013 when he was 19 years old he started dating his former girlfriend from a wealthy family in the same village with political connections to the ruling political party in Pakistan.

3.In early 2014 after his parents’ proposal to his girlfriend’s family for him to marry her was rejected because they regarded him and his family as not wealthy enough for their daughter, the Applicant was twice threatened and assaulted by his girlfriend’s brothers and cousins on the streets with a warning not to see his girlfriend again or else he would be killed, and when he continued to receive similar threatening phone calls from his girlfriend’s family almost daily, and when he was told by his neighbours that some gangsters had been to his home looking for him and whom he suspected were sent by his girlfriend’s family, theApplicant became fearful for his life and fled to Kashmir to take shelter at his friend’s place.

4.Although he did not encounter any further incidents in Kashmir, when he later heard that he had been located by his girlfriend’s family, and that he continued to receive threatening phone calls from them, he decided that it was not safe to remain in Pakistan,and so on 12 May 2014 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 4 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 16 February 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”).

6.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that the risk of harm from his former girlfriend’s family would materialize upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that his problem with them was a private personal dispute without any evidence of 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 alternativesare available in Pakistan with a large population of 196 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 Faisalabad or Rawalpindi where it would be difficult if not impossible for his former girlfriend’s family to locate him.

7.On 1 March 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 30 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 4 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted that the Applicant may have a brief relationship with his former girlfriend and may have proposed to marry her, but after his marriage proposal had been rejected by her family and that he had left his home village to move elsewhere in Pakistan, it was not accepted that her family would still have any adverse interest in him after all these years, or that he would still have any well-founded fear of harm from her family, and concluded that there was no reason why his former girlfriend’s family would still waste their time and resources to try to locate him in Pakistan that the Applicant was not entitled to non-refoulement protection in Hong Kong under any of the applicable grounds.

9.On 15 February 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 exhibited copies of the documents in his hearing bundle for his appeal before the Board and repeated his claim of fear of harm from his former girlfriend’s family as before, and submitted that given the efficiency of social network and internet nowadays that state or police protection would not be effective to ensure that it would be safe for him to relocate to other parts of Pakistan.

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

11.In the Applicant’s case, the Board rejected his claim essentially on its finding that there was no reliable evidence that his former girlfriend’s family would still have any adverse interest in him after all these years or that he would still have any well-founded fear of harm from them based on the thorough and detailed analysis and reasoning set out in paragraphs 28 – 36 of its decision and with the benefit of hearing him in oral evidence and his answers to questions raised of his claim in the oral hearing of his appeal, and there is therefore no basis for the Board to consider the possibility of him being located through social media or to challenge its assessment of state protection based on reliable COI available to it.  In the absence of any error of law or procedural unfairness being shown by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

12.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,I agree that 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 6^th day of July 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