Naeem Kashif v. Torture Claims Appeal Board and Another

HCAL 65/2019

[2022] HKCFI 2157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 65 of 2019

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 the Applicant 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 on 27 January 2016 and surrendered to the Immigration Department on the same day when 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 Tehreek-e-Insaf (“PTI”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Korangi, Karachi, Pakistan. After leaving school he worked in the garment factory, got married and raised a family with 3 children, and supported PTI regularly attended their local meetings and rallies without holding any official post in the party.

3.Sometime in late 2015 he was approached by some local PML(N) supporters to join their party, and when he refused, they made threats against him.

4.There were no further incidents thereafter until one day in January 2016 when he came across those PML(N) supporters who assaulted him by punching and kicking, and warned him that if he was not willing to join their party, he would not be welcome in the neighbourhood and that he should leave town.

5.Shortly thereafter one evening when he heard gun shots and saw a group of men outside his house, he suspected that they were there to frighten him and his family, and fearing for his safety, the Applicant fled to Lahore to take shelter in a friend’s place, and on 21 January 2016 he departed 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 8 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 30 January 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”).

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 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 violent conflicts between supporters of rival political parties in Pakistan were common and that there is no evidence or reason for the Applicant to be specifically targeted given that he was just an ordinary PTI supporter without any official post in the party, that PTI had since won the general election and become the ruling party that it was not accepted that there would still be any adverse interest in him, 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 Islamabad where it would be difficult if not impossible for those local PML(N) supporters to locate him.

8.On 12 February 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 22 October 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board accepted the Applicant’s evidence as to his claim of threats from some local PML(N) supporters but found no evidence or reason for them to specifically target him for political reasons, that his party PTI had since won the election and become the ruling party, and that in the absence of any official involvement that state/police protection would be available to the Applicant if needed upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country without any risk of being located that his claim for non-refoulement failed on all applicable grounds.

10.On 8 January 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 put forward the following grounds for his intended challenge:

(1) That the Director and the Adjudicator reached their decisions wrongly in assessing his non-refoulement claim in that their decisions were not reasonable or fair as required by the Wednesbury test that his right to life must be protected by criminal law from extra-judicial killings that he may face if deported to his home country;

(2) That the Adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3) That the Director failed to appreciate or give proper weight and importance to the presence of state acquiescence in his case which led to an unfair outcome of rejecting his non-refoulement claim;

(4) That the Director failed to take into account of the fact that the Applicant was tortured at the behest of the state law enforcement agencies and politicians that the state would 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 before reaching the decision;

(5) That the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed to consider or give enough weight to such evidence and ruled otherwise which was a clear case of unfair attitude by the Director which is in itself enough to render his decision void; and

(6) That the Director failed to apply high standards of fairness in failing to recognize the corruption and incompetency of the administration in the Applicant’s home country is still a serious problem as various human rights organizations had compiled reports which stated testament to the Applicant’s assertions that the decision should be considered unreasonable in the scope of public law.  

11.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 apply to his case or how the Director or the Adjudicator had erred in their decisions, or what relevancy were state acquiescence or torture be to his claim, or in what way did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Adjudicator fail to give him sufficient time or opportunity to present his evidence in support of his claim or appeal when he never raised any such issues during his appeal hearing before the Board or what evidence that he had wanted to present but was unable to do so before the Board. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge, 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 merits in his intended application either.

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 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.                

14.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.

15.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 15^th day of July 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