Khan Waris v. Torture Claims Appeal Board

HCAL 1529/2018

[2021] HKCFI 1284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1529 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 (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 43-year-old national of Pakistan who entered Hong Kong illegally in early October 2009 and was arrested by police on 4 October 2009. 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 terrorist group the Taliban for refusing to join their group. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in the Swat Valley, Khyber Pakhtunkhwa, Pakistan. After leaving school he worked as a taxi driver, got married and raised a family of 2 children in his home village.

3.One day in 2008 while he was driving his taxi taking two passengers to the local hospital, he was stopped at a roadblock by a group of masked armed men who accused them of breaking the curfew and beat them before allowing them to leave.

4.On another occasion in 2009 a group of masked and armed men came to the Applicant’s home demanding him to join the Taliban, and not wanting to risk his life, the Applicant pretended to agree to join them, and thereafter the group left.

5.As the Applicant feared that the group would come looking for him again, he therefore fled with his family to Peshawar to take shelter at a UNHCR camp for refugees, but when he later received telephone calls from men claimed to be Taliban threatening to kill him, he felt it was no longer safe to remain in Pakistan, and so he travelled to Islamabad and from there he departed Pakistan on 18 September 2009 for China, and from there he later sneaked into Hong Kong, and upon his arrest he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 November 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 18 June 2015 the Director of Immigration (“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”).

7.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 Taliban upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence that he had been specifically targeted by the Taliban whose purpose was just to recruit people to join their group, that the Taliban were regarded by the Pakistani government as terrorists and had launched military actions against them 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 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 or the stronghold of the Taliban in some large cities where it would be difficult if not impossible for the Taliban to locate him.

8.By a Notice of Further Decision dated 8 December 2016 the Director again rejected the Applicant’s claim in the absence of any further or 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”).

9.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 29 June 2015, and for which he attended an oral hearing on 22 December 2016 before the Board during which he confirmed his claim as previously provided to the Director and declined to give any further evidence or to answer questions raised of his claim by the Adjudicator for the Board. On 26 July 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found no reliable evidence of any real intention of those Taliban to harm or kill the Applicant in their recruitment attempts of people to join their group, that there was no evidence that he had been specifically targeted by them for harm, and that the Taliban are regarded as terrorists by the Pakistan government that state protection would be available to the Applicant upon his return to Pakistan if needed that his claim for non-refoulement protection failed on all applicable grounds.   

11.On 2 August 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 forth the following grounds for his intended challenge:

(1) that there was no reasonable basis for rejecting the credibility of his claim;

(2) that the Board failed to consider the extended form of acquiescence in his claim;

(3) that the Board failed to fully consider the COI reports in assessing risk to the Applicant;

(4) that it was irregular of the decision-maker to be a different person than the interviewing officer;

(5) procedural impropriety/unfairness in the Board’s failure to investigate into the COI of Pakistan;

(6) irrationality in the Board’s failure to place weight on relevant information and/or selectively placing weight on irrelevant information;

(7) irrationality in the Board’s failure to consider a consistent system of human right violations;

(8) irrationality in the Board’s failure to consider if state protection exists in Pakistan;

(9) irrationality in the Board’s placing weight on irrelevant matters 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 failing to apply the correct standard of proof; and

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

12.All these grounds however appear to me to have been just copied from some pro forma statements commonly used in this type of applications but are mainly irrelevant to the Applicant’s claim, or that they appear to be just some 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 Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how it failed to apply the correct standard of proof, or what relevancy was state acquiescence to his claim, 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, 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 fact is that it has been established by the Director in his 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, 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 7^th day of May 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