Zaki v. Torture Claims Appeal Board

HCAL 1519/2018

[2020] HKCFI 2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1519 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 36-year-old national of Pakistan who entered Hong Kong illegally on 27 October 2009 and was arrested by police on the same day.  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 the Muslim family of his cousin’s girlfriend over some personal dispute and/or by some other Muslims because he was a Christian.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Jalalpur Jattan, Gujrat, Punjab, Pakistan in a family where he and his parents as well as all his siblings were Christians.  After leaving school he worked in a factory in Gujarat before moving to Sialkot in 2002 to live with his relatives who were also Christians, and where one of his cousins was dating a Muslim girl which they kept as a secret from her family due to their different religions.

3.However, one day when the family of the Muslim girl discovered their relationship, they together with other Muslims in the neighbourhood attacked his cousin, and when the Applicant saw his cousin being beaten up, he fled from the scene to hide in the house of another relative.

4.Later the Applicant was told that his cousin had been taken by the police to the station where he was further tortured until he eventually died from his injuries.  Thereafter the Applicant left and went to work in a factory in Gujrat.

5.One day towards the end of 2003, he had a dispute with some of his fellow factory workers during which he was beaten by them causing cuts and bruises to his body, and when they finally stopped beating him, one of the men pointed a pistol at his head and warned him that if they saw him again in the factory, they would kill him.  After the Applicant received medical treatments in the local hospital, he quitted his job and returned to his home in Jalalpur Jattan.

6.In 2004 he went to Lalamusa in Punjab where he worked as a clerk in a bank.  One day in 2006 while he was on a bus, he was attacked by two Muslims who noticed that he was a Christian and pointed a gun at him threatening to shoot him that he immediately got off the bus.

7.On another occasion in December 2008 he was told by his uncle that another cousin of his had been abducted by the Muslim girl’s family to force them to handover the Applicant to them, but his cousin was eventually released after he had promised to inform them of the Applicant’s whereabouts in future.   

8.As a result the Applicant felt that it was no longer safe to remain in Pakistan, and so on 25 October 2009 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 29 December 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

9.By a Notice of Decision dated 28 May 2015 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”).

10.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 the Muslim girl’s family or from those other Muslims in various isolated incidents upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that after all these years since he left Pakistan that there is no reason why any of them would still have any adverse interest in him, 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 Karachi where it would be difficult if not impossible for the Muslim girl’s family or any of his perceived enemies to locate him.

11.On 10 June 2015 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 19 August 2016 before the Board during which he gave oral evidence and answered questions put to him by the adjudicator for the Board.  On 3 March 2017 his appeal was dismissed by the Board which also confirmed the Director’s Decision.

12.In its decision the Board found the Applicant’s alleged involvement with the Muslim girl’s family arose out of a personal dispute with one of his cousins years ago with no further incidents since 2009 that there is no evidence that that family or any other Muslims would still have any adverse interest in him, that in any event with no evidence of any official involvement that state or police protection would be available as well as reasonable internal relocation within Pakistan for the Applicant to move safely to other area away from his home district without any risk of being located by his perceived enemies that his claim for non-refoulement protection failed on all applicable grounds.  

13.On 5 April 2017 the Director on his own initiative in writing invited the Applicant to submit any additional facts or representation 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”), and in the absence of any response from him the Director by a Notice of Further Decision dated 24 April 2017 again rejected all his non-refoulement claim including BOR 2 risk.

14.Again the Applicant lodged an appeal to the Board against the Director’s Further Decision, for which the Board did not find it necessary to hold another oral hearing and proceeded to deal with the appeal in the Applicant’s absence and on paper.  On 13 July 2018 the Board again dismissed the Applicant’s appeal and confirmed the Further Decision of the Director upon finding no additional facts from the Applicant which may be relevant to his non-refoulement claim on any applicable ground including BOR 2 risk which was not engaged based on the facts and materials of his case.

15.On 1 August 2018 the Applicant filed his Form 86 for leave to apply for judicial review of this Second Decision of the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) that the Board dismissed his appeal on unfounded ground;

(2) that the Board’s decision betrayed a bias and formulaic approach that was unlikely to fairly assess the danger to his life; and

(3) that in light of the new law in Pakistan, relocation is practically impossible as the fight against terrorism touches new high that state protection is in fact non-existent. 

16.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the Board arrive at its decision on unfounded ground, or how did its decision show a bias or formulaic approach in assessing the risk to his life, or what evidence is there to show that state protection is non-existent due to fight against terrorism in Pakistan.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, nor are they relevant to the finding of the Board’s Second Decision regarding his BOR 2 claim.  As such I do not find any of them reasonably arguable for his intended challenge.

17.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.

18.In the Applicant’s case, even up to now he has not provided any additional facts relevant to the assessment of his BOR 2 risk.  Based on the existing materials and the case advanced by him, the assessment of his BOR 2 Risk would be the same as BOR 3 risk, the persecution risk, and the torture risk, and on the facts of his claim and in the light of the scope and threshold of a BOR 2 claim, there is simply no room for engaging the BOR 2 ground.  As such I agree with the Board that no useful purpose would be served by an oral hearing for the Applicant’s second appeal before the Board.  In the premises and for the reasons given, I do not find any basis to challenge the Board’s Second Decision either.    

19.Furthermore, as found by both the Director and the Board in their first decisions 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.

20.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.

21.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 19^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