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

HCAL 459/2018

[2020] HKCFI 1691

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 459 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 25 January 2014 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 certain local supporters of rival political party Pakistan Tehreek-e-Insaf (“PTI”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Karam Nagar, Tehsil Lahore City, Punjab, Pakistan.  After leaving school, he first worked as a salesman, a worker and later ran his own store leasing motorcycles in his home district, and in 2013 he became a supporter of the political party Pakistan Muslim League (N) (“PML(N)”).

3.In May of the same year during the General Elections, the Applicant and his fellow supporters were assigned by their party to put up posters and banners and to generally assist the local voters in casting their votes at the voting stations.

4.On the evening after the voting was closed and the Applicant and his fellow PML(N) supporters were waiting for the result, a group of PTI supporters accused them of making too much noises, and proceeded to attack them by punching and kicking them until they retreated back to their local PML(N) office.  As they did not suffer any serious injuries, they did not report the matter to the police.

5.However, several months after PML(N) had won the General Elections, a group of PTI supporters came to the local office of PML(N) and accused the Applicant and his fellow supporters of being arrogant and verbally insulted them before proceeding to attack them by punching and kicking them until other PML(N) members arrived to intervene that those PTI supporters then fled from the scene.

6.Afterwards the Applicant and his fellow supporters planned to take revenge against those PTI supporters but could not find them.  One day while the Applicant was out, those PTI supporters came to his home looking for him, and when they were told by his family that he was not at home, they threatened that they would kill the Applicant if they found him.

7.The Applicant did not report that threat to the police, but as he became fearful for his life, he therefore fled to Bhimber Kot in December 2013 to take shelter at his aunt’s home where he stayed for 1 ½ months without incidents, but when he later heard that those PTI supporters were still looking for him everywhere, he decided that it was no longer safe to remain in Pakistan, and so on 17 January 2014 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 2 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

8.By a Notice of Decision dated 24 February 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local PTI supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there was no reliable evidence that he had been specifically targeted by PTI due to his low position in his party which had since also become the ruling party, 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 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 young adult with working experience to move to other part of Pakistan away from his home district in large cities such as Islamabad where PML(N) was the ruling party and where it would be difficult if not impossible for those PTI supporters to locate him.

10.By a Notice of Further Decision dated 25 November 2016 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

11.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 7 March 2016, and for which he attended an oral hearing on 18 January 2017 before the Board during which he confirmed his claim as set out in his appeal bundle but declined to give any further evidence or to answer questions from the adjudicator regarding details of his claim.  On 12 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board found in the absence of any further evidence from the Applicant to clarify or answer questions raised by the adjudicator of his claim during his appeal hearing which undermined its reliability that it doubted the credibility of his claim, but found in any event that with state protection as well as reasonable internal relocation available for him to move safely to other places away from his home district such as Islamabad or Quetta where he can re-establish his life and work without any risk of being located by those PTI supporters that his claim for non-refoulement protection failed on all the applicable grounds.

13.On 20 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 would still be in danger if he were to return to his home country but without putting forward any proper or valid grounds for his intended challenge, nor did he request any oral hearing for his application.  As such I do not find any reasonably arguable basis for his intended challenge. 

14.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.

15.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 its decision, 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.    

16.Furthermore, 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.     

17.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.

18.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 27^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