Sharif Muhammad Umer v. Torture Claims Appeal Board

HCAL 1530/2018

[2021] HKCFI 1339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1530 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 30-year-old national of Pakistan who entered Hong Kong illegally on 5 November 2015 and surrendered to the Immigration Department on 1 March 2016 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the local supporters of rival political party Pakistan Muslim League (N) (“PML(N)”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Sialkot, Pakistan. After leaving school he worked as a tailor in his home district, and became a supporter of the political party Pakistan Tehreek-e-Insaf (“PTI”) regularly attended their local meetings and rallies, during which he and his fellow supporters had been involved in various conflicts with the local PML(N) supporters.

3.After several attacks by the local PML(N) supporters on the PTI supporters in 2012 and 2013 during which the Applicant had been struck with wooden sticks and suffered injuries which required medical treatments, the Applicant became fearful for his life, and fled to Gujranwala where he stayed at his friend’s place for more than 2 years without incidents before departing Pakistan on 3 November 2015 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 (“NCF”) on 23 May 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 14 June 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”).

5.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 those local PML(N) supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it was common between supporters of rival political parties to have violent conflicts but with no evidence of the Applicant being specifically targeted for harm, 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 201 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 Gujranwala where he had stayed before for more than 2 years without incidents and where it would be difficult if not impossible for those local PML(N) supporters to locate him.

6.On 26 June 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 19 April 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 13 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board accepted the Applicant’s claim of being involved with PTI’s political activities in his home district that led to various conflicts with PML(N) supporters but found no evidence that he had been specifically targeted for harm, that in eth absence of any evidence of official involvement that state/police protection would be available to him if needed upon his return to Pakistan as well as reasonable internal relocation for him to safely move to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

8.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 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 investigating officer;

(5)  Procedural impropriety/unfairness in failure to investigate into the COI of Pakistan;

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

(7)  Irrationality in failure to consider a consistent system of human rights violations;

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

(9)  Irrationality in 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 applying the incorrect standard of proof; and

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

8.     These grounds however appear to me something copied from pro forma statements commonly used in this type of applications but wholly irrelevant to the Applicant’s claim, or just some 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 Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to consider the extended form of state acquiescence or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Adjudicator fail to give reasonable basis for rejecting the claim or fail to consider human rights violations in Pakistan, 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.  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.

9.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.

10.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 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.     

11.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.

12.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 13^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