Ali Niaz v. Torture Claims Appeal Board

HCAL 239/2021

[2024] HKCFI 365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 239 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 30-year-old national of Pakistan who entered Hong Kong illegally in April 2016 and surrendered to the Immigration Department on 8 April 2016 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 Muslim League (N) (“PML(N)”) as he 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 Jalalpur Jatan Tehsil, District Gujarat, Punjab, Pakistan.  After leaving school he worked as a garment salesman in his home district, and supported PML(Q) regularly attended their local meetings and activities without holding any official post in the party.

3.During the 2015 union council election when he was participating with his fellow PML(Q) supporters in assisting the party in its election campaign, he was confronted by a group of local PML(N) supporters who demanded that he stopped supporting PML(Q), and when he refused, they attacked him with wooden sticks that he eventually passed out and was subsequently taken to the local hospital for medical treatments.

4.After PML(N) won the election their local supporters started to harass intimidate and even attacked the PML(Q) supporters including the Applicant, and after several such attacks that he suffered cuts and bruises all over his body, the Applicant became fearful for his safety and fled to Islamabad and then to Karachi. 

5.However, in early 2016 when he heard that the local PML(N) supporters had made false charges against him to the police, the Applicant felt it was no longer safe to remain in the country, and so on 31 March 2016 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 9 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 31 January 2018 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 assessed the level of him being harmed or killed by those local PML(N) supporters upon his return to Pakistan as low 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 him for harm given that he was just an ordinary PML(Q) supporter without any official post in the party or that ether would still be any adverse interest in him after all these years since he left the country, 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 Karachi where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

8.On 12 February 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 16 November 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 19 February 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim and in particularly his lack of knowledge and information concerning his claimed support for PML(Q) that it found that he was no more than just an ordinary supporter or minor member without any real or important post in the party that it doubted his claim of fear of harm from those PML(N) supporters that caused him to leave his home country to come to Hong Kong to seek protection, and that in any event his claimed dispute with them is no different from the common conflicts between supporters of rival political parties in Pakistan and without any official involvement that state or 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 away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

10.On 26 February 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Board reached the decision wrongly in assessing the Applicant’s non-refoulement claim in that it failed to recognize that right to life must be protected by criminal law from extra-judicial killings that the Applicant may face if deported to his home country;

(2)  That the Adjudicator wrongfully failed to give the Applicant sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim and his appeal;

(3)  That the Board failed to appreciate or give proper weight or importance to the presence of State Acquiescence in the Applicant’s case that led to an unfair outcome of rejecting his non-refoulement claim;

(4)  That the Board failed to take into account the Applicant’s argument that he was tortured at the behest of the state law enforcement agencies as well as politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant which is a clear case of unfair attitude shown by the Board which in itself is enough to render the decision void;

(6)  That the Board failed to attain high standard of fairness as required by the Wednesbury test in failing to recognize that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s assertions that the decision should be considered unreasonable in the scope of public law.

11.These are however all just bare and vague assertions of the Applicant without any relevant or necessary details or particulars or elaborations as to how they would apply to his case or how did the Board or the Adjudicator err in the decision, or in what way did the Board fail to attain high standard of fairness or that the decision was unfair or unreasonable, or how did the Adjudicator fail to give him time or opportunity to present his evidence in support of his acclaim or appeal, or what relevancy were State Acquiescence or extra-judicial killings to his case.  As none of these assertions were elaborated by the Applicant with any relevant details or particulars that I do not find any of them reasonably arguable for his intended challenge, 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, nor do I find any merits in his intended application either.   

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 38 – 103 of its decision with the benefit of hearing him in his oral evidence and 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.Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim even 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.                

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.Moreover, the Applicant recently on 20 November 2023 filed an affirmation requesting to withdraw his application as his problem in his home country has been resolved that he now wants to return to Pakistan.  

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

Dated the 1^st day of February 2024

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