Shah Zakir v. Torture Claims Appeal Board

HCAL 1416/2019

[2021] HKCFI 1779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1416 of 2019

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 32-year-old national of Pakistan who entered Hong Kong illegally on 12 January 2016 and was arrested by the police on the same day. 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 terrorist group known as Tehreet-e-Taliban Pakistan or Pakistani Taliban (“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 Village Mian Dheri, Tehsil Ghazi, District Haripur, Khyber Pakhtunkhwa, Pakistan. After leaving school he worked as a farmer on his family’s farmland in his home village.

3.In about early 2015 Taliban members started to come to the Applicant’s village to recruit young men by threats and force as new members, and as the Applicant did not want to join them, and on his parents’ advice he fled from his home village for Hazro to take shelter in a friend’s place, and when he was later told by his parents that the Taliban had come to his home looking for him, he became fearful for his life, and kept moving from town to town, and eventually on 9 January 2016 he departed Pakistan 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 (“NCF”) on 13 July 2018 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).  

4.By a Notice of Decision dated 3 August 2018 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 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 any past ill-treatment from them, that there is no reliable evidence that he had been specifically targeted by the Taliban for recruitment and that in any event it is doubtful that after all these years since his departure from Pakistan that they would still have any interest in him, that the Taliban have been regarded by the Pakistani government as a terrorist group and that military actions have been taken 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”) shows that reasonable internal relocation alternatives are available in Pakistan with a large population of 204 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 parts of Pakistan away from his home district in large cities such as Lahore or Islamabad where it would be difficult if not impossible for those Taliban to locate him.

6.On 16 August 2018 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 April 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 16 May 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found no evidence that the Applicant had been specifically targeted by the Taliban for recruitment, that the Pakistani government has taken military actions against the Taliban with successful counterterrorism efforts by retaking control of previous Taliban strongholds, and that with reasonable internal relocation available to the Applicant upon his return to Pakistan to move safely to other areas away from his home district or other strongholds of the Taliban without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

8.On 24 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  that the Director and the Adjudicator of the Board reached their decisions wrongly in assessing his non-refoulement as he must be protected from extra-judicial killings which he may face if deported back to his home country;

(2)  that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in his case which had led to an unfair outcome of rejecting his non-refoulement claim as he had been tortured at the behest of the state law enforcement agencies for which the state should be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)  that the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account;

(4)  that the director had listed relevant COI which supported the aversions that the police in his country would not be able to protect which the Director failed to consider or give enough weight to them and ruled otherwise;

(5)  that the Director failed to attain high standard of fairness required by the Wednesbury test in the decision which should be considered unreasonable in the scope of public law;

(6)  that the Adjudicator was procedurally improper or unfair when assessing whether to accept explanations provided by the Applicant and unreasonably required him to response to questions that he was not in a position to offer any response and that the Adjudicator also failed to take into account the nexus of political parties and official corruption which exist in his home country making the persecution effectively persecution by the State; and

(7)  that the Adjudicator’s decision in dismissing the appeal was based on irrational findings.

9.These are however all just 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 Director or the Adjudicator had erred in their decisions, or in what way would such assertions be relevant to his case when many of the complaints such as torture with state acquiescence or extra-judicial killings are in fact wholly irrelevant to the facts of his case that it appears that they were simply copied from the statements of some other applicants with entirely different facts or bases that none of them are applicable to the Applicant’s claim nor are they reasonably arguable for his intended challenge.

10.As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

11.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.

12.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 parts 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.  

13.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.

14.Furthermore, on 9 June 2021 the Applicant filed an affirmation requesting to withdraw his application as his problem is solved and that he wants to return to his home country.

15.In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of the Applicant’s latest confirmation that the basis for his claim no longer exists, I accordingly accede to his request and dismiss his leave application.

Dated the 22^nd day of June 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