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

HCAL 1486/2018

[2020] HKCFI 183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1486 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 30-year-old national of Pakistan who arrived in Hong Kong on 7 December 2011 with permission to remain as a visitor up to 14 December 2011 when he did not depart and instead overstayed and was arrested by police on 24 May 2012.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by supporters of rival political party Pakistan Muslim League – Q (“PML-Q”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Gujranwala, Punjab, Pakistan.  While at school he followed his family’s tradition to become a supporter of the political party Pakistan Muslim League – N (“PML-N”) and regularly attended their meetings and rallies in his home village.

3.In 2008 the Applicant together with his friends and fellow supporters participated in their party’s campaign for the general election, and on the morning of the election, while they were assisting the local villagers to cast their votes at the voting stations, a group of rival PML-Q supporters appeared and clashed with the Applicant and his fellow supporters which then broke into a mass brawl, during which the Applicant was struck by hockey sticks and suffered bruises all over his body.

4.Eventually the police arrived to disperse the mass, and the Applicant with some of his friends managed to flee from the scene to a neighbouring village where they received medical treatments to their injuries.  Thereafter as the Applicant was afraid to return to his home village, he therefore took shelter at one of his friend’s place where he stayed for several weeks without further incidents.

5.However, one day in March 2008 the Applicant heard that one of his friends had disappeared without any news, but later he received some phone calls from some PML-Q supporters who claimed to have abducted his friend and threatened to kill him for supporting PML-N, and when he subsequently heard that his friend had been found dead and continued to receive threats from PML-Q supporters, and that on one occasion when some of those supporters shot at him and his friend with their guns, the Applicant therefore fled to Lahore and later to Karachi where he stayed for more than 2 years without further incidents.

6.Then one day in October 2011 when the Applicant saw some of the PML-Q supporters in the town market, he feared that it was no longer safe for him to remain in Pakistan, and therefore departed in December 2011 for Hong Kong where he subsequently overstayed, and when he was arrested by the police, he raised his torture claim later taken as a non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.By a Notice of Decision dated 5 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 Ordinance, Cap 383 (“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 assessed the level of risk of harm from those PML-Q supporters upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that it was common for violent clashes to occur between supporters of rival political parties in Pakistan and that there is no reliable evidence that the Applicant had been specifically targeted by the PML-Q supporters, that in any event 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 show that reasonable internal relocation alternatives are available in Pakistan with a large population of 202 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 Lahore or Karachi where he had stayed for more than 2 years without any incidents and where it would be difficult if not impossible for those PML-Q supporters to locate him.

9.On 19 April 2017 the Applicant 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 30 May 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 9 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found the Applicant’s evidence on his claim confused and inconsistent, that those as to his alleged involvements in PML-N were vague and rehearsed that it did not find him to be a credible witness of truth, and that it did not accept that he was ever a member or supporter of PML-N or that he was politically active or that he had been threatened or pursued by rival PML-Q supporters, and that in any event since PML-N has become the majority party of the country that it is unlikely that the Applicant would still face any risk of harm from PML-Q supporters that his claim for non-refoulement protection failed on all applicable grounds.    

11.On 27 July 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 the following grounds for his intended challenge:

(1)      that the Director was judgmental towards the Applicant’s case and never gave him a fair chance to express himself during his screening interview;

(2)      that the Director wrongly or misunderstood his fear of threats and harm from PML-Q in the determination of his claim;

(3)      that the documents in the hearing bundle provided to him for his appeal before the Board were never translated or interpreted to him which was procedurally unfair; and

(4)      that the Board’s decision was never translated or interpreted to him and was therefore also procedurally unfair.  

12.The Applicant’s complaint under Ground (1) of not being given a fair chance to express himself during his screening interview before the Director was broad and vague without any particulars or elaboration, and the fact that he was legally represented by DLS for 2 years in his process before the Director during which he was given ample opportunity to submit additional facts and information in support of his claim through his lawyer, and which he did on two occasions without any complaint at that time that I do not find any basis or merit in this ground of the Applicant.

13.As for his complaint under Ground (2) that the Director wrongly understood his claim in which the Applicant quoted in his affirmation a passage from the Director’s decision, on carefully examination and consideration I do not find anything wrong with the Director’s finding that the threats from those PML-Q supporters were in fact as claimed by the Applicant, and I do not find any basis for claiming that there was any misunderstanding of the Applicant’s alleged threats or risk in his claim.

14.Regarding his complaint under Ground (3) that the documents in the hearing bundle for his appeal before the Board were never translated or interpreted to him, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decision should already be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal.  Accordingly I do not find any merit in this complaint of the Applicant, nor do I find it reasonably arguable for his intended challenge.

15.As for his complaint under Ground (4) that the Board’s decision had never been translated or interpreted to him, even if it is true, it is simply not a valid ground per se to challenge the Board’s decision.  As such it is not arguable for his intended application.

16.Essentially the Applicant’s claim was rejected by the Board on its adverse finding as to his credibility for the thorough analysis and reasoning set out in paragraphs 12 – 97 of its decision with the benefit of hearing his oral evidence and his answers to questions raised of his claim during his appeal hearing, as such 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 to challenge the finding of the Board.

17.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 unreasonable or 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.     

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 Applicant’s claim.

19.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 13^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