Asghar Ali v. Torture Claims Appeal Board

HCAL 3013/2019

[2023] HKCFI 2084

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3013 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 / 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 41-year-old national of Pakistan who arrived in Hong Kong on 28 March 2003 as a visitor with permission to remain as such up to 1 April 2003 when he did not depart and instead overstayed, and was arrested by police more than 2 years later on 4 November 2005 for possession of the identity card of another person, for which he was subsequently convicted and sentenced to prison for 12 months. Upon his discharge from prison and was referred to the Immigration Department for deportation, he raised a torture 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 (Q) (“PML(Q)”) as he supported their rival Pakistan Muslim League (N) (“PML(N)”) and/or by the police over some false charges made against him, 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 in Village Saroki, Gujrat, Pakistan. While at school he started to support PML(N) by joining its student wing Muslin Student Federation (“MSF”) in 2000 at the age of 19 regularly attended their meetings and activities at school.

3.During the 2002 General Election and while attending a rally with his fellow student supporters for the PML(N) candidate, they were confronted by a group of PML(Q) supporters during which gun shots were fired from both sides that led to many injuries including a local PML(Q) leader, but the Applicant managed to escape from the scene unharmed.

4.On the following day the Applicant heard that the police were looking for him as those PML(Q) supporters had made some false charges against him for being involved in the shooting incident, and so he fled from his home village to hide in his uncle’s place in Mandi Bhauddin.

5.One day in December 2002 when he was away from his uncle’s house, he heard that some PML(Q) supporters had come looking for him, and when they were unable to find him, they then threatened and beat his uncle. Fearing for his life, the Applicant therefore fled to Karachi to take shelter in his aunt’s place, and on 21 March 2003 he departed Pakistan for China, and from there he later travelled to Hong Kong where he overstayed and was arrested by police more than 2 years later when he raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 19 September 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 October 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 those local PML(Q) supporters or the police upon his return to as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there was no evidence or reason for those PML(Q) supporters to specifically target him for political reason as he was just an ordinary PML(N) supporter without holding any official post in the party, while there was also no evidence of any adverse interest of the police or authorities in him and that he was able to leave the country without any problem, 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 areas 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 12 November 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it could hear or deal with his appeal, the Board in August 2019 received an undated letter from the Applicant in which he stated as follows:

“I want to go back to Pakistan as soon as possible, it is safe for me to go back and I have no money to buy air ticket. I want to cancel all my non-refoulement claim including appeal/JR (if any) in Hong Kong, and there is no need to see my non-refoulement claim case officer. I have no other request.”

9.By a letter dated 23 August 2019 the Director acknowledged receipt of the Applicant’s request to withdraw his appeal/petition, and on the basis that he fully understood the consequences of his proposed withdrawal, and that if no further reply or response was received from him by 30 August 2019, his application for withdrawal would be confirmed, and that his appeal/petition would be dismissed and disposed of as finally determined by the Board.

10.As no response had been received from the Applicant, the Board by a decision dated 30 August 2019 confirmed upon being satisfied that there was good reason for the Applicant’s proposed withdrawal of his appeal/petition as it was safe for him to return to Pakistan that it directed that the appeal/petition be withdrawn, and that the Director’s decision be confirmed.

11.However, just 6 weeks later on 14 October 2019 the Applicant filed a 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 as it disregarded his dangerous situation but without providing any details or particulars or elaboration as to how it did so, nor did he request any oral hearing for his application.

12.As noted above, the Board allowed the Applicant to withdraw his appeal/petition at his own request for his stated reason that it was safe for him to return to his home country and upon being satisfied that he knew what he was doing as well as the consequences of the withdrawal. In the circumstances the Board found as a fact that the Applicant had acted with the knowledge and intention to bring an end to his appeal/petition, and in the absence of any error of law or irrationality or procedural unfairness on the part of the Board in allowing the appeal/petition be so withdrawn and dismissed at the Applicant’s own request, I am unable to find any reasonably arguable basis to challenge such finding of the Board.

13.In Re Das Purnima Rani [2019] HKCA 669, the Court of Appeal held that the Board in dismissing an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal of the appeal by the claimant becomes functus officio with no further jurisdiction to deal with the appeal, as Lisa Wong J in giving judgment of the Court elaborated at p41:

“Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any further step regarding the appeal ... s 37V(2) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.”

14.In the present case, as noted above that the Applicant has failed to put forward any proper ground to challenge the Board’s decision to dismiss his appeal upon his withdrawal application, nor does he seek any reinstatement or re-opening of his appeal on the basis that his withdrawal was invalid due to mistake or misrepresentation. As such, and in the absence of any error of law or irrationality or procedural unfairness in the Board’s dismissal of his appeal upon his own request, I am unable to see any reasonably arguable basis to challenge the Board’s decision.

15.That being the case, any challenge by the Applicant of the Director’s decision instead would also be futile in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or in his decision being clearly and properly identified by the Applicant, and I do not find any reasonably arguable basis to challenge the Director’s decision either.

16.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.

17.In the Applicant’s case, the fact is that it has been established by the Director in his 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, 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 and Anor [2013] 1 HKC 526.

18.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 the Director’s consideration and assessment of the Applicant’s non-refoulement claim or the Board’s decision to dismiss his appeal upon his own request.

19.Furthermore, the Applicant recently on 8 June 2023 filed an affirmation requesting to withdraw his application as all his problems in his home country have been solved and that he wants to return to Pakistan.

20.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, and in view of his latest confirmation of no more problem for him to return to his home country, I accordingly dismiss his leave application.

Dated the 11^th day of August 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