Ahmed Tanveer v. Torture Claims Appeal Board

HCAL 581/2018

[2020] HKCFI 2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 581 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 1 August 2013 and was arrested by police on 3 October 2013.  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 Muslim League (N) (“PML(N)”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Dopai, Tehsil Zafarwal, District Narowal, Punjab, Pakistan.  After leaving school worked as a delivery worker and became a supporter of the political party Pakistan Muslim League (Q) (“PML(Q)”) without holding any official position but attended their local meetings and rallies regularly.

3.In May 2013 during the national elections, the local supporters of PML(N) in his home village demanded the villagers to vote for their candidate, but when the Applicant and some of his fellow villagers refused, the PML(N) supporters threatened them with violence and proceeded to attack them with the butts of their guns that the Applicant sustained injuries in his shoulders with bruises all over his body.

4.Upon receiving medical treatment in the local hospital, the Applicant then went to report the assault to the police, but on his way he was threatened by the same PML(N) supporters that he became frightened and returned home.

5.Several days later the PML(N) candidate won the general election and PML(N) became the ruling party.  Fearing of further threats from their local supporters, the Applicant therefore left his home village to take shelter in his uncle’s home in Gujranwala City where he stayed without further incidents, but in June 2013 he was told by his father that those local PML(N) supporters had come looking for him in his home, and when they could not find him, they then made a false claim against him to the police that as a result his father was brought in for police interrogation for several hours before being released.

6.As a result the Applicant felt that it was no longer safe for him to remain in Pakistan, and so in June 2013 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 6 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 20 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 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 local PML(N) supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that since PML(N) had won the election and become the ruling party that there is no reason for those local PML(N) supporters to continue to have any adverse interest in the Applicant, 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 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 adult with working experience to move to other part of Pakistan away from his home district in large cities such as Lahore, Islamabad or Karachi where it would be difficult if not impossible for those local PML(N) supporters to locate him.

9.On 2 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 16 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 19 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence during his appeal hearing which seriously undermined the credibility of his claim that he was not considered as a credible witness and that it was not accepted that any of his claims is true, and that it was not satisfied on the basis of his evidence that there were substantial grounds for believing that there is any real risk that he would be subjected to threats or harm upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.  

11.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 stated that the decision was unreasonable in that the Board failed to consider all the matters raised in his claim and/or to give adequate reason for its decision but without providing any particulars or elaboration why it was so or put forward any proper ground for his intended challenge.  Nor did he request any oral hearing for his application.

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.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 32 – 42 of its decision with the benefit of hearing him in his oral evidence and 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.

14.Furthermore, the fact 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.

15.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.

16.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 17^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