Rehman Abdul v. Torture Claims Appeal Board

HCAL 1313/2020

[2022] HKCFI 1583

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1313 of 2020

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 33-year-old national of Pakistan who entered Hong Kong illegally on 16 February 2016 and was arrested by 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 certain local supporters of the political party Pakistan Muslim League (N) (“PML(N)”) as he supported their rival Pakistan Muslim League (Q)(“PML(Q)”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Sarai Alamgir, Gujrat, Pakistan. After leaving school he worked in various jobs, got married and raised a family with 3 children in his home district, and supported PML(Q) regularly attended their local meetings and rallies, during which he and his fellow PML(Q) supporters would often come into conflicts with the local PML(N) supporters.

3.One day in May 2013 while he was assisting his party in campaigning for the general election, the Applicant was approached by a group of local PML(N) supporters to join their party, and when he refused, they then beat him with rocks and bricks until they were intervened by other villagers.

4.After the incident the Applicant left the country to work in United Arab Emirates as a mechanic until the end of 2013 when he returned to his home district in Pakistan to resume his support of PML(Q).

5.One day in October 2015 during a local election, the Applicant was again approached by some local PML(N) supporters to join their party, and when he refused, one of them pulled out a pistol and shot at him, but the Applicant managed to escape from the scene without any harm.

6.A few days after the incident, the Applicant started to receive threatening calls from those PML(N) supporters, and as he became fearful for his life, he therefore fled from his home to take shelter in his uncle’s place, and on 14 April 2016 he departed Pakistan 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 15 March 2018 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 3 April 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that he would be in danger of being harmed or killed by those local PML(N) supporters upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for those local PML(N) people to specifically target him given that he was just an ordinary PML(Q) supporter without any official post in the party, 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 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 part of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for those local PML(N) supporters to locate him.

9.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 21 April 2020 before the Board during which he confirmed his claim as previously made to the Director but elected not to give any further oral evidence or to answer any questions raised of his claim by the Adjudicator for the Board. On 19 June 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found the Applicant’s refusal to give further evidence or to answer any questions raised of him claim failed to clarify or explain the various issues raised by the Adjudicator in respect of the many contradictions and discrepancies in his information previously provided to the Director that they casted doubt on the credibility of his claim of fear of harm from those local PML(N) supporters for his departure of his home country for Hong Kong, and that in view of the fact that PML(N) have since lost power in Pakistan and in the absence of any further threats from their local supporters against the Applicant that it was not accepted that he would face any risk of harm from them or anyone else upon his return to Pakistan, and concluded that his claim for non-refoulement protection failed on all applicable grounds.

11.On 26 June 2020 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 just attached a copy of the decision but without putting forward any proper ground for his intended challenge. 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.

12.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.

13.In the Applicant’s case, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in his claim if true 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.

14.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.

15.Furthermore, the Applicant recently on 21 April 2022 filed an affirmation requesting to withdraw his application as he has no problem in his home country that he want go back home.

16.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation that he has no more problem to return to his home country, I accordingly dismiss his leave application.

Dated the 27^th day of May 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