Khan Kamran Ali v. Torture Claims Appeal Board

HCAL 1014/2018

[2021] HKCFI 1045

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1014 of 2018

BETWEEN

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 the Applicant 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 49-year-old national of Pakistan who last entered Hong Kong illegally on 17 July 2011 and was arrested by police on 18 June 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 arrested by police and prosecuted for a murder charge falsely brought against him. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Rawalpindi, Punjab, Pakistan, and after leaving school he worked in a local newspaper, and also engaged in dealing in properties.

3.In March 2001 he first arrived in Hong Kong as a visitor during which he reported the loss of his passport but thereafter he disappeared and it is not known how and when he left Hong Kong.

4.In 2005 he submitted applications to the Immigration Department for visiting visa but was refused, and in 2006 he made another application under another identity with a different date of birth which was also rejected.

5.In 2007 he married his wife in Pakistan who was a Hong Kong resident and submitted a dependent visa application but which was refused in 2010 after he was found to have submitted false information to the Immigration Department.    

6.In April 2011 he left Rawalpindi for Lahore after allegedly learning from his brother that the police were looking for him over the murder of a relative of which he claimed to be innocent but was framed up by the wife of the victim and the local police inspector.  

7.In late June 2011 he departed Pakistan for China, and from there he sneaked into Hong Kong on 17 July 2011, and upon his subsequent arrest by the police on 18 June 2013, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 February 2017 with legal representation from the Duty Lawyer Service (“DLS”) but for various reasons failed to attend any screening interviews before the Immigration Department.     

8.By a Notice of Decision dated 21 September 2017 the Director of Immigration (“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”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no reliable evidence that he had in fact been charged by police for any criminal charges or that he was being wanted or pursued by police plus the fact that he had been able to leave the country on more than one occasions without any problem or difficulties that it was not accepted that he would face any such risk of being arrested or prosecuted for the crime he claimed to have been falsely brought against him, that his various behavior upon arriving in Hong Kong regarding his visa applications and false identity information submitted to the Immigration Department as well as his failure to raise his claim upon arrival in Hong Kong until almost 2 years later after he was arrested by police further undermined the credibility of his claim, and that in any event reliable and objective Country of Origin Information (“COI”) show that his rights as an accused under criminal prosecutions would be guaranteed by the Constitution of Pakistan and that he would be entitled to be defended by lawyers of his choice to go through a fair trial and due process under the judicial system in Pakistan that his claim for non-refoulement protection was rejected.

10.On 4 October 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 15 March 2018 before the Board during which he however refused to answer any questions put to him as to his claim by the Adjudicator for the Board despite being advised that it was necessary for him to explain and clarify all the questions and queries raised of his claim for the purpose of establishing the credibility issues. On 29 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found a number of significant issues in the Applicant’s claim including the irregularities of his past migration history and record in Hong Kong but more importantly the inconsistencies, vague and confused nature of his evidence about his claims to fear of being arrested detained and prosecuted for a murder which he had no involvement with and did not commit but which he declined to answer the many questions raised of his claim at the oral hearing of his appeal before the Board despite being advised to do so that it had serious doubts over the reliability of his evidence and the credibility of his claim, and that it did not accept his claim that he was charged with murder in Pakistan in 2011 or at any other time or that he was ever falsely or incorrectly accused of killing or murdering another person or ever being involved with such an act or incident or that he was wanted by police or law enforcement authorities in Pakistan on suspicion or allegation that he had committed or been involved with the commission of a crime or that at the time he left Pakistan in 2011 that he was a person of adverse interest to the police or law enforcement authorities in Pakistan or to any other person or group in Pakistan that his claim for non-refoulement protection failed on all applicable grounds.      

12.On 4 June 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 unfair and unreasonable but without providing any particulars or elaboration how it was, nor did he put forward any proper ground for his intended challenge there or at the hearing of his application. As such and in the absence of any error of law or irrationality 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 for his intended challenge.

13.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.

14.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 11 – 53 of its decision and in the absence of any answer to questions validly raised by the Adjudicator in respect of his claim or any explanation or clarifications from him of the many inconsistencies and discrepancies found in the information previously submitted by him to the Director despite being advised that it was necessary for him to do so in order to establish his claim, and in the absence of any error of law or irrationality 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.        

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 16^th day of April 2021.

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