Shahzad Khurram v. Torture Claims Appeal Board

HCAL 881/2019

[2023] HKCFI 202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 881 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 (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 37-year-old national of Pakistan who entered Hong Kong illegally on 22 December 2015 and was arrested by police on 23 December 2015. 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 Tehreek-e-Insaf (“PTI”) and over some election dispute between them. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Mohalla Colony, Ghaziabad Dhok Syedan, Rawalpindi, Pakistan. After leaving school he assisted his father in his sewing machines business, and supported PTI regularly attended their local meetings and rallies without holding any official post in the party.

3.In September 2014 during the local provincial assembly election, the Applicant and his fellow PTI supporters came into conflicts with certain PML(N) supporters due to dispute over election candidacy that he was attacked by them on the street with wooden sticks until his fellow PTI supporters came to his aid to separate them, and eventually the 2 groups entered into a truce.

4.However, after PML(N) won the local election, and when the same group of supporters spotted the Applicant on the street, they chased after him and attacked him, but the Applicant managed to make his escape with only minor injuries.

5.Thereafter the Applicant became fearful for his safety and fled from his home to take shelter in a friend’s place in Rawalpindi, and when he later heard that those PML(N) supporters were still looking for him everywhere, the Applicant on 16 December 2015 departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 29 December 2017 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 found no substantial ground for believing that there will be any real risk of him 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 them to specifically target the Applicant given that he was just an ordinary PTI supporter without any official post in the party, that in any event 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 the country away from his home district in large cities such as Lahore or Islamabad where it would be difficult if not impossible for anyone to locate him.

8.On 2 January 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 12 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 25 March 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found discrepancies, inconsistencies and contradictions in the Applicant’s evidence that it did not consider him to be a credible witness and doubted the credibility of his claim of hear of harm from those local PML(N) supporters that caused him to leave his home country for Hong Kong, and that in any event even if such risk is real that it is a localized one in his home district that reasonable internal relocation would be available to him upon his return to Pakistan to move safely to other area without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.On 1 April 2019 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 or in his supporting affirmation of the same date in which he just stated that he rejects the decision because it disregarded his dangerous situation but without providing any details or elaboration as to how it did so, 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.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 44 - 46 of  its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as from reliable and relevant COI which did not support or corroborate his claimed risk, 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.

13.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk 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 and 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 19^th day of January 2023.

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