Mehmood Kashir v. Torture Claims Appeal Board

HCAL 877/2018

[2020] HKCFI 2226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 877 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 26 September 2013 and was arrested by the Immigration Department on 3 October 2013.  He then raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the Khan family in his home town for refusing to carry out illegal activities for them including trafficking dangerous drugs and firearms.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Haroon, Attock, Punjab, Pakistan.  After leaving school he worked as a labourer and later as a driver for the Khan family who were wealthy businessmen and landowners in Haroon with political connections.

3.In about 2010 while driving for the Khan family transporting their goods, the Applicant discovered that those goods were in fact illegal drugs and firearms, and when he tried to quit his job, he was threatened by the Khan family and was forced to participate in their illegal activities, and when he refused, he was beaten by their men.

4.The Applicant subsequently fled to Rawalpindi and then Karachi where he took shelter at his aunt’s place, but in early 2012 he was captured by men sent by the Khan family and was brought back to Haroon where he was tortured by the Khan family before he was forced to work for them again, but he managed to make his escape later when he fled to Islamabad where he departed Pakistan in mid-September 2013 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 21 January 2016 with legal representation from the Duty Lawyer Service, but failed to attended screening interview before the Immigration Department.

5.By a Notice of Decision dated 1 September 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”).

6.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 Khan family upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence or logical reason why they would be willing to expand their manpower and resources to force someone like the Applicant to work for them, 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 193 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 or Lahore where it would be difficult if not impossible for the Khan family to locate him.

7.By a Notice of Further Decision dated 28 November 2017 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”).

8.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 15 September 2016, and for which he attended an oral hearing on 11 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 23 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found the Applicant’s evidence of being threatened and ill-treated by the Khan family for refusing to participate in their illegal activities vague, unpersuasive and incredible that it doubted his claim of fear of harm from them upon his return to Pakistan, nor did it accept his claims that state/police protection would not be available to him or that he would not be able to relocate safely within Pakistan to other area away from his home district without any risk of being located by the Khan family that his claim for non-refoulement protection failed on all applicable grounds.   

10.On 21 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but not ground for seeking relief was given in the Form, and in his supporting affirmation of the same date he merely stated that he wants to review the decision because it disregarded his dangerous situation but without putting forward any proper grounds for his intended challenge, 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 16 – 56 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 9^th day of September 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