Ahmad Waqas v. Torture Claims Appeal Board

HCAL 595/2021

[2023] HKCFI 2860

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 595 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 32-year-old national of Pakistan who arrived in Hong Kong on 29 November 2011 but when he was refused entry by the Immigration Department, 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 People’s Party (“PPP”) as he and his family supported their rival Pakistan Muslim League (Q) (“PML(Q)”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Gunian, Tehsil-Malikwal, Mandi Bahauddin District, Punjab, Pakistan. After leaving school he worked as a farmer in his home district, and followed his family’s tradition to support PML(Q) regularly attended their local meetings and activities without holding any official post in the party.

3.During the 2008 general election, while the Applicant together with his father and uncle who were also PML(Q) supporters were voting at the polling station in their home village, a fight broke out between supporters of PPP and PML(Q) that also involved the Applicant’s father and uncle, and after the PPP candidates won the election, the Applicant’s father and uncle led a protest against PPP which caused their supporters to target them as enemies and launched attacks against both of them that his uncle was killed in one of such attacks.

4.Thereafter the Applicant’s father became concerned for the safety of  the Applicant and his siblings, and sent them out of town to Karachi and then Kehwra to avoid such threats, and on his father’s advice the Applicant on 26 November 2011 departed Pakistan for China, and from there he then travelled to Hong Kong, and when he was refused entry by the Immigration Department, he raised his torture claim, and after it was rejected he then sought non-refoulement claim protection, for which he completed a Supplementary Claim Form (“SCF”) on 24 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 6 June 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds except 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”).

6.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 PPP supporters upon his return to Pakistan as low due to the absence of any past ill-treatment from them, that whatever issues they had with his father and uncle were private matters between them without involving the Applicant that it is not accepted that they would have any adverse interest in him especially after all these years since he left the country in 2011, 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 Islamabad or Lahore where it would be difficult if not impossible for anyone to locate him.

7.On 14 June 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 4 February 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 14 April 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s evidence of political disputes between his father and uncle and the local PPP people but found no evidence that the Applicant had been targeted for harm for any political reason by those PPP supporters prior to his departure of Pakistan in 2011 that it is not accepted that he would face any such risk upon his return to his home country years later, that whatever disputes his father and uncle had with the PPP people were between them without involving the Applicant or with any official involvement that state or police protection would be available to him upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 28 April 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 as his life is still in danger in his home country but without putting forth any proper ground for his intended challenge. 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.

10.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.

11.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on any evidence or indication of any risk of harm that he may face in his home country for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing his oral evidence and his answers to the 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.  

12.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 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 & Anor [2013] 1 HKC 526.                

13.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.

14.Moreover, the Applicant recently filed an affirmation requesting to withdraw his application as his “all problems are finished”. 

15.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 having no more problems in his home country, I accordingly dismiss his leave application.

Dated the 7^th day of November 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