Nawaz Usman v. Torture Claims Appeal Board

HCAL 728/2021

[2023] HKCFI 1741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 728 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 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 29-year-old national of Pakistan who entered Hong Kong illegally on 18 October 2019 and surrendered to the Immigration Department on 28 October 2019 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 Tehreek-e-Insaf (“PTI”) as he supported their rival Pakistan Muslim League (N) (“PML(N)”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Jalalpur Jattan, Gujrat, Punjab, Pakistan. After leaving school he worked as a salesman in his home district, and joined his elder brother to support PML(N) by regularly attended their local meetings and activities.

3.In late 2016 a local PTI leader approached the Applicant and his brother to join PTI, and when they refused, the PTI leader threatened them that there would be serious consequences for refusing to join his party.

4.On day in January 2017 while the Applicant and his brother were travelling on a motorcycle near Fawahra Chowk, they were struck by a car driven by the local PTI leader that both of them suffered serious injuries and required lengthy hospitalization, but of which the police just treated as a traffic accident without taking any action against the PTI people.

5.Several months later the Applicant received threating phone calls from those PTI people again demanding him to leave PML(N) to join their party, and when he still refused, they then abducted him and beat him for days before he managed to make his escape and fled to Gujrat City to hide in a friend’s place before moving on to Multan City to take shelter in a cousin’s place, and then to Hyderabad to stay with his uncle.

6.However, one day in early 2019 he was abducted by some unknown men sent by the PTI people and was taken back to his home district but he managed to make his escape and fled to Islamabad, and on 29 September 2019 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 25 February 2020 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 15 May 2020 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 there will be any real and substantial risk of him being harmed or killed by those local PTI supporters upon his return to Pakistan given the fact that he was just an ordinary PML(N) supporter without holding 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 233 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 areas of the country away from his home district in large cities such as Lahore where it would be difficult if not impossible for those local PTI supporters to locate him.

9.On 25 May 2020 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 17 November 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 12 April 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found material inconsistencies discrepancies and omissions in the Applicant’s evidence between those given earlier to the Director and to the Board and which were in serious contrary to relevant COI of the political situation in Pakistan that it doubted the credibility of his claim of fear of harm from those local PTI supporters that caused him to leave his home country to seek protection in Hong Kong, and concluded that he had fabricated his claims entirely about his alleged political involvement in PML(N) or of threats from those PTI people that there is no real or substantial risk that he would face from anyone upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

11.On 20 May 2021 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 is not satisfied with the decision but without putting forward any proper ground for his intended challenge, 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.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 61 – 65 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.

14.The fact is that it has also been established by the Director in his decision 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, 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.

15.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.

16.Furthermore, the Applicant has recently filed an affirmation requesting to “close” his application as he has now obtained Hong Kong but without providing any further details or evidence in support of his assertion.

17.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I accordingly dismiss his leave application.

Dated the 5^th day of July 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