Zeeshan v. Torture Claims Appeal Board

HCAL 574/2018

[2020] HKCFI 1778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 574 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 32-year-old national of Pakistan who entered Hong Kong illegally on 19 July 2012 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by the man for having witnessed a murder committed by him.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Khepran Wala, Tehsil District, Gujrat, Pakistan.  After leaving school he worked as a farmer and a factory worker, got married and raised a family of two children in his home village.

3.One day on 21 September 2010 while he and his cousin were transporting some cattle grass on their bicycles to their farmland, one of their bicycles fell and hit the side of a passing car.  The driver Shaheed who lived in the same village got out of his car and scolded them for hitting his car and slapped the Applicant on the face, and when his cousin pushed the man away which then broke into a fight between them, but when the Applicant was running towards his home to get help, he heard several gun shots in behind and turned around to see his cousin falling on the ground while Shaheed was driving away in his car.

4.Later his cousin died from his wound while on his way to the hospital, and his family then reported the matter to the police who started their investigation, but the Applicant was advised by his father to stay away from the village as Shaheed was a former village councilor with political connections with the political party Pakistan Muslim League (Q) (“PML(Q)”) and may harm or kill him for having witnessed the murder, and so he fled to Lahore and went into hiding.

5.However, sometime in 2011 when he heard that Shaheed was still looking for him everywhere, he felt it was no longer safe to remain in Pakistan, and so on 13 July 2012 he     departed for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police, he raised a torture claim with the Immigration Department, and after it was rejected he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 13 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 15 February 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds except torture claim but including 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 assessed the level of risk of harm from Shaheed upon his return to Pakistan as low due to the absence of any past ill-treatment from him, that as a witness to a crime and 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 201 million people spread across a vast territory of more than 770,000 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 it would be difficult if not impossible for Shaheed to locate him.

8.On 27 February 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 21 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 3 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board did not find the Applicant to be a credible witness and did not accept his claim that he had witnessed a murder or that he had been threatened by Shaheed which caused him to come to Hong Kong, and that in any event with that risk being a localized one in his home district that with reasonable internal relocation available for him to move safely to other parts of Pakistan away from his home district in large cities such as Lahore where he had stayed before for two years without incidents that his claim for non-refoulement protection failed on all applicable grounds.      

10.On 9 April 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 he cannot go back to his home country until his problems back home have been solved.  Nor did he request any oral hearing for his application.

11.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.

12.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 paragraphs 114 – 170 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, 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.  

13.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.     

14.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.

15.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 4^th day of August 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