Butt Asif Ellahi v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office and Another

HCAL 2100/2018

[2020] HKCFI 1593

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2100 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 42-year-old national of Pakistan who entered Hong Kong illegally on 8 October 2015 and surrendered to the Immigration Department on 13 October 2015 when 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 (Q) (“PML(Q)”) and/or by the police over a fighting incident between him and those supporters.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Muhallah Jinnah, Jalalpur Jattan, Gujrat, Pakistan.  After leaving school he worked in a shoes factory and became a supporter of the political party Pakistan Peoples Party (“PPP”) putting up banners and posters as well as attending its rallies and demonstrations in Jalalpur Jattan.

3.One day in early 2015 the Applicant with some of his fellow PPP supporters ran into some PML(Q) supporters who started to insult them and demanded that they should quit their party which deteriorated into a fight during which one of the PML(Q) men was injured in the head, whereupon the Applicant immediately fled from the scene and went home, and on his father’s advice he then took shelter in a friend’s place.

4.On the following day, when the Applicant was told by his family that some PML(Q) supporters had come to his home looking for him, and when they could not find him, they fired their guns into the sky and threatened to kill him when they find him.  Hence his brother advised him not to return home and to stay at his friend’s place in Daska.

5.However, several days later when he heard that the police were also looking for him in their investigation of the fighting incident, the Applicant felt that it was no longer safe to remain in Pakistan, and so on 2 October 2015 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 (“NCF”) on 24 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

6.By a Notice of Decision dated 1 March 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”).

7.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 risk of him being harmed or killed by those PML(Q) supporters or by the police upon his return to Pakistan due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he had been specifically targeted by the PML(Q) supporters, and that if the police were indeed looking for him in their investigation of the fighting incident that they were only doing their duty and there is simply nothing to suggest that he would be harmed let alone killed as a result, that in the absence of any official involvement in the actions of the PML(Q) supporters 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 Lahore where it would be difficult if not impossible for those PML(Q) supporters to locate him.

8.On 9 March 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 8 May 2018 before the Board but declined to give any evidence or to answer any questions from the Board despite being invited to do so to deal with the issue of his credibility, and left after claiming to be not feeling well.  On 24 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found in the absence of any oral evidence from the Applicant but based on the documents and information in the hearing bundle before it that there were significant inconsistencies and discrepancies in the Applicant’s claim unanswered by him despite being invited to do so during his appeal hearing that it was not satisfied that he had told the truth about his claim or that he left Pakistan for any fear of harm for reasons of his political opinion or for reasons of any threats of animosity or fear from those PML(Q) supporters or from the police, and concluded that there is not a reasonable likelihood or genuine or real or substantial risk that he would be targeted for harm upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.   

10.On 3 October 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 even date and submissions by letter dated 22 November 2019 he put forward altogether the following grounds for his intended challenge:

(1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Pakistan;

(4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Pakistan and misdirected himself as to the extended meaning of state protection;

(5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision;

(8) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure;

(9) that the Board unlawfully fettered its discretion in refusing his appeal on the ground that it did not satisfy the requirement;

(10) that the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(11) that the Board’s decisions in refusing his appeal were unreasonable or irrational in the Public Law sense or the result of procedural errors or unfairness;

(12) that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(13) that the Board failed to apply high standards of fairness owed to a self-represented claimant;

(14) that the Board had significantly relied on sources of news not officially recognized or were hearsay or outdated that resulted in groundless speculation that it would be safe for the Applicant to return to his home country; and

(15) that the hearing bindle which was all in English was provided to the Applicant without giving him sufficient time to prepare for the appeal before the Board.  

11.These are however all 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 Director or the adjudicator had erred in their decisions, or in what way did the adjudicator fail to apply high standards of fairness or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient, or how did the Board unlawfully fettered its discretion or acted in a procedurally unfair manner in dealing with his appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

12.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.

13.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle all in English being provided to him without given him insufficient time to prepare for his appeal.  However, even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should 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 anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

14.Essentially his claim was rejected by the Board on its adverse finding as to his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 42 – 73 of its decision upon his refusal to give evidence or to answer questions raised of his credibility despite being advised to do so at his appeal hearing, and in the absence of any error of law or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant for sufficient particulars or elaborations, I do not find any reasonably arguable basis 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 regarding threats from PML(Q) 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.     

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 28^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