Rizwan Ahmed v. Torture Claims Appeal Board

HCAL 917/2018

[2020] HKCFI 2582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 917 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 38-year-old national of Pakistan who entered Hong Kong illegally sometime in 2014 and was arrested by police on 19 April 2015.  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 the family of a friend who blamed him for his friend’s death and/or by his uncle over a land dispute in his home village.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Majhi, Mandi Bahawaldin, Punjab, Pakistan. After leaving school he worked in various jobs his home district.

3.One day in 1998 he was arrested with several of his friends over the death of another friend Tahir for which the Applicant and his friends were subsequently convicted for murder but after serving several years in prison they were acquitted on appeal, but as Tahir’s family still blamed him for Tahir’s death and had threatened to kill him for revenge, the Applicant therefore fled to Lahore where he stayed for several years without further incidents.

4.In 2008 he returned to his home village as his father was having a land dispute with his uncle who had sided with Tahir’s family against his family, and on one occasion his uncle together with some members of Tahir’s family attacked the Applicant and his family during which one of his family members was shot and injured.

5.After the attack the Applicant fled to Karachi without further incidents until one day in 2012 when he was ambushed by his uncle who attacked him with a knife and slashed his left arm but the Applicant managed to make his escape.   

6.As he felt it was no longer safe to remain in Pakistan, the Applicant therefore on 27 July 2014 departed for China, and from there he later sneaked into Hong Kong, and upon his arrest he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 18 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 27 October 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 found no substantial grounds for believing that his claimed risk of harm form his perceived enemies upon his return to Pakistan due to low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention on their part to seriously harm or kill him, that in any event after all these years it is doubtful they 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 (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 202 million people spread across a vast territory 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 Islamabad or Lahore where he had stayed before without incidents and where it would be difficult if not impossible for Tahir’s family or his uncle to locate him.

9.On 8 November 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 26 January 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 15 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found the Applicant’s evidence on his claim vague, inconsistent and confused that it doubted the credibility and reliability of his claim which it concluded to have been fabricated to create a claim for non-refoulement protection, and that in any event with his education and employment experience it would not be unreasonable or unduly harsh for him to relocate to other part of Pakistan such as Lahore where he had stayed before without incidents and without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.  

11.On 24 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)  No reasonable basis for rejecting the credibility of his claim;

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

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

(4)  Irregularity of the decision-maker being a different person than the interviewing officer;

(5)  Procedural impropriety/unfairness in failing to investigate into the country of origin information 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 right violations;

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

(9)  Irrationality in placing weight on irrelevant matter or on 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.

12.These are however all just broad and vague assertions of the Applicant containing several pages of 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 what relevancy was state acquiescence to his claim, or in what way did the Adjudicator apply the incorrect standard of proof or 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. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, while the mechanism for his appeal which is a rehearing of his claim to be before a different decision-maker is actually a safeguard for fairness in which I fail to see how he could be so prejudiced or adversely affected.

13.As such and in the absence of any error of law or procedural unfairness in his process or in its decision being clearly and properly identified with relevant elaborations by the Applicant, I do not find any of these grounds reasonably arguable for his intended challenge, nor do I find any reasonably arguable basis to challenge the finding of the Board.

14.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.

15.In the Applicant’s case, 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 his 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.

16.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.

17.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 26^th day of November 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