Hussain Zakir v. Torture Claims Appeal Board

HCAL 890/2018

[2020] HKCFI 2279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 890 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 40-year-old national of Pakistan who entered Hong Kong illegally in early March 2014 and was arrested by police on 27 March 2014. 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 his wife’s family who were against their marriage.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born in Mardan, Khyber Pakhtunkhwa, Pakistan and was raised in Village Waisa, Attock, Punjab.  After leaving school he worked as a helper of a wealthy family in Teshil Harzo, Attock where he became acquainted with the daughter of that family and with whom he later eloped and married in 2006 against the objections of her family.

3.As a result of the subsequent threats and assaults made against him by her family, the Applicant therefore moved his family to Mardan to stay with his relative, but after further threats were made against him and his family during which his parents were assaulted and his father later died in a fire which the Applicant suspected was set by his wife’s family, and after he was shot at by some gangsters sent by them, the Applicant then moved his family to Karachi.

4.However, one day in 2010 a man sent by his wife’s family threw a grenade into the Applicant’s home which killed his wife and son, and after he took revenge by throwing grenades at his wife’s family during a gathering which killed several of their members, the Applicant then departed Pakistan for United Kingdom where he sought asylum protection, but after it was rejected he was repatriated to Pakistan in late 2011.

5.Upon returning to Pakistan the Applicant stayed in Karachi, but when he later heard that his wife’s family were still looking for him, he departed Pakistan again on 7 July 2013 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 8 November 2016 and attended two screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 22 June 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 his wife’s family upon his return to Pakistan due to serious doubts over the veracity of his claim in the absence of any documentary evidence of the alleged death of his wife and other family members, that in any event 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 (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 202 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 Rawalpindi or Lahore where he had stayed before without incidents where it would be difficult if not impossible for his wife’s family to locate him.

8.On 28 June 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 6 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 7 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found the Applicant’s account of events occurred in Pakistan riddled with inconsistencies, contradictions and implausibility which went to the heart of the reasons why he claimed to be at risk of harm if returned to Pakistan, coupled by serious doubt over the authenticity of his documents which were also inconsistent with his oral evidence given to the Board that it found his claim inherently implausible and incredible that it concluded 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, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) lack of reasonable basis for rejecting his claim on credibility;

(2) failure to consider the extended form of state acquiescence;

(3) failure to fully consider the COI reports in assessing the risk to the Applicant;

(4) irrationality in that the decision-maker was a different person from the immigration officer;

(5) procedural impropriety/unfairness in failing to investigate into the COI of Pakistan;

(6) irrationality in failing to place weight on relevant information and/or selectively placing weight on irrelevant information;

(7) irrationality in failing to consider a consistent system of human rights violations;

(8) irrationality in failing to consider if state protection exists in Pakistan;

(9) irrationality in placing weight on irrelevant matters or inaccurate or incorrect facts;

(10) procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations;

(11) procedural impropriety in applying the incorrect standard of proof; and

(12) no proper basis for consideration of internal relocation.  

11.On 5 June 2020 the Applicant filed a written submissions citing various authorities but without explaining how they may apply to his case, while his repeated grounds are all just broad and vague assertions of his 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 Director or the adjudicator had erred in their decisions, or in what way was extended state acquiescence relevant to his case, or how did they fail 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 how did they apply the incorrect standard of proof.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.  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.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 46 – 105 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.  

14.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 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 15^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