Yaseen Zohaib v. Torture Claims Appeal Board and Another

HCAL 326/2019

[2022] HKCFI 1063

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 326 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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 32-year-old national of Pakistan who overstayed in Hong Kong since 11 May 2014, and eight months later on 14 January 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political party Pakistan Muslim League (N) (“PLM(N)”) as he supported their rival Pakistan Peoples Party (“PPP”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Azad Kashmir, Pakistan where he followed his family’s tradition to support PPP by regularly participating in their local meetings and activities.

3.One day in February 2013 while he and his fellow PPP supporters were on their way back from a party’s procession, they were attacked by a group of PML(N) supporters with wooden sticks that the Applicant was hit in his right eye and was subsequently taken to the local hospital for medical treatment.

4.Upon his discharge from hospital, the Applicant did not report the assault to the police, as afterwards senior members of the two parties had settled the matter between themselves, but somehow the Applicant was still fearful for his own safety, and so sometime in mid-2014 he departed Pakistan for Hong Kong where he subsequently overstayed since 11 May 2014, and some eight months later on 14 January 2015 he surrendered to the Immigration Department and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 1 February 2018 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 28 February 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”).

6.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 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 there is no evidence that he had been specifically targeted by the PML(N) people as he was just a supporter with no official position in PPP, that even on his own case that the incident was subsequently settled between the two parties without the need to involve the police, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan 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 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 parts of Pakistan away from his home district in large cities such as Islamabad or Lahore where it would be difficult if not impossible for those local PML(N) supporters to locate him.

7.On 9 March 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 11 and 12 December 2018 with his lawyer before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board and with submissions made by his lawyer on his behalf. On 18 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the Applicant’s evidence of being involved in a violent conflict between rival supporters of PPP and PML(N) but found no evidence or reason for the PML(N) people to specifically target him given that he was just a PPP supporter with no official post in the party, that in any event the incident had already been settled between the senior members of the two parties with no reason why there would still be any adverse interest in the Applicant after all these years that it was not accepted that he would face any real risk of harm from the PML(N) people upon his return to Pakistan, and that in the absence of any official involvement that state/police protection would be available to him upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 4 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the decisions of both the Director and the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation, nor did he request any oral hearing for 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.

10.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.

11.In the Applicant’s case, the Board rejected his claim essentially on its clear findings of no evidence of any real risk of harm that he would face under any of the applicable grounds upon his return to Pakistan for the thorough and detailed analysis and reasoning set out in paragraphs 34 – 73 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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.  

12.Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim if real 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.     

13.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.

14.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 April 2022.

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