Khan Imran v. Torture Claims Appeal Board

HCAL 1684/2021

[2022] HKCFI 2717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1684 of 2021

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 40-year-old national of Pakistan who arrived in Hong Kong on 24 August 2011, and when he was refused entry by the Immigration Department, he then raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by his girlfriend’s family who objected to their relationship, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Sunni Muslim in Hassan Abdal, Attock, Punjab, Pakistan. After leaving school he worked as a salesman and driver in his home district, and in about 2011 started to date his girlfriend from a wealthy Shia family with her father being a former local city administrator and a member of the political party Pakistan Peoples Party (“PPP”).

3.Due to their different religions, they kept their relationship a secret to her family, but one day in 2011 when they were seen by her brother who then demanded that they stopped seeing each other, and when the Applicant refused, her brother and his friends started to assault him, and after the brother dragged his girlfriend away, his friends then grabbed the Applicant and took him to a deserted farmhouse where they were later joined by the brother who together proceeded to hang the Applicant upside down and beat him for close to an hour before releasing him.

4.After the assault the Applicant reported the matter to the police who however just advised him to settle the dispute with his girlfriend’s family privately without taking any action. Shortly thereafter two of the men who had earlier assaulted him came to his house looking for him, and when they saw him on the roof, they fired several shots at him with their pistols but missed him, and the Applicant managed to make his escape by fleeing from his home to hide in his uncle’s place.

5.Later when he was told by his mother that his girlfriend had written a letter to warn him that her family had intended to kill him, the Applicant decided that it was no longer safe to remain in Pakistan, and so on 17 August 2011 he departed for China, and from there he later travelled to Hong Kong, but when he was refused entry by the Immigration Department, he raised his torture claim, and after it was rejected, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 20 March 2018 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any of the scheduled interviews before an immigration officer due to various alleged medical reasons.

6.By a Notice of Decision dated 20 April 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 his girlfriend’s family upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence other than hearsay of any real intention of his girlfriend’s family to kill the Applicant or that they had subsequently killed his girlfriend in the name of honour killing, that in any event it was a private dispute between them without 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 the country away from his home district in large cities such as Islamabad or Karachi where it would be difficult if not impossible for anyone to locate him.

8.On 2 May 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 7 January 2020 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 6 December 2021 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 claim of threats from his girlfriend’s family due to their objection over their relationship, but found no reliable evidence that his girlfriend had indeed been killed by her family or of any real intention of them to seriously harm or kill him given all the time and opportunity for them to do so prior to his departure of the country, and that in any event it was a private personal dispute between them without any official involvement that state/police protection would be available to the Applicant 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 by anyone that his claim for non-refoulement protection failed on all applicable grounds.

10.On 14 December 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(2)  That the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(3)  That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(4)  That the Board acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(5)  That in dismissing the Applicant’s appeal, the Board showed no indication that it had investigated the facts of the Applicant’s claim or conducted any analysis of his supporting documents or turned its mind to the grounds under consideration being the violation of the Applicant’s right to life under BOR 2 risk; and

(6)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay that the lack of credible source of information that resulted in it making groundless speculation.

11.These are however all just broad and vague assertions of the Applicant containing a few key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board had erred in its decision, or in what way was the decision unreasonable or irrational in the public law sense, or how did the Board unlawfully fetter its discretion or act in a procedurally unfair manner in dealing with his appeal, or what source of information were not officially recognized or were hearsay or outdated, or what relevancy would his claim be to the BOR 2 ground when the factual basis of his claim even on his own case at the highest a private relationship dispute with the family of his girlfriend without engaging any BOR 2 risk at all. 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.

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 correctly 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 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.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 2 August 2022 filed an affirmation requesting to withdraw his application as he has been granted a visa to remain in Hong Kong but without providing any further details or documentary evidence in support of his claim.

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 in view of his latest confirmation to withdraw his application, I accordingly dismiss his leave application.

Dated the 2^nd day of September 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