Hussain Sajjad v. Torture Claims Appeal Board

HCAL 3884/2019

[2024] HKCFI 431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3884 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 29-year-old national of Pakistan who entered Hong Kong illegally on 25 July 2019 and was arrested by police on the same day. 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”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Mirpur, Azad Kashmir, Pakistan. After leaving school he remained living with his parents, and followed his family’s tradition to support PTI regularly attended their local meetings and activities without holding any official post in the party.

3.In 2017 his father started to have some political dispute with a local PML(N) leader in their home village, and one day in December 2017 the Applicant was told by his brother that their father had been shot and killed by the said local PML(N) leader and his followers, and after his brother had reported the murder to the police, no action was taken against those PML(N) people as bribes had been given to the police, and instead those PML(N) people then threatened and beat up the Applicant’s brother.

4.Shortly thereafter in early 2018 the Applicant was also attacked by the same group of PML(N) people with wooden sticks that he subsequently passed out and was brought home by some neighbours.

5.After the attack the Applicant became fearful for his life and fled to Islamabad, and on 19 July 2019 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 29 August 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 23 September 2019 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 any reason for them to specifically target him for harm given that he was just an ordinary PTI supporter without holding any official post in the party or that there would still be any adverse interest in him after he had 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 207 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 young adult to move to other areas of the country away from his home district in large cities such as Lahore or Karachi where it would be difficult if not impossible for anyone to locate him.

8.On 4 October 2019 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 13 December 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 27 December 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found no reliable evidence or reasons for those local PML(N) people to specifically target the Applicant for harm given that he was just an ordinary PTI supporter without any official post in the party, and that in any event even if such risk were real that in the absence of 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 30 December 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and 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 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 despite the fact that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be held liable to the Applicant by cause of the state and its public officials failed to provide reasonable protection for its citizens under the duty of due diligence;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account;

(4)  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 the Board failed to consider or give enough weight to such evidence and instead ruled otherwise against the Applicant’s case;

(5)  That the Board failed to attain high standard of fairness required by the Wednesbury test in the decision that it should be considered unreasonable in the scope of public law;

(6)  That the Adjudicator was procedurally improper or unfair when assessing whether or not to accept explanations provided by the Applicant and unreasonably required him to respond to questions that he was not in a position to offer any response;

(7)  That the Adjudicator failed to take account the nexus of political parties and official corruption which exist in the Applicant’s home country thus making persecution effectively persecution by the state; and

(8)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow the appeal and hence the decision was irrational.

11.These are all just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary details or particulars or elaborations as to how they would apply to his case, or in what way did the Adjudicator act unreasonably or was procedurally unfair or place too much reliance on what COI in assessing his claim, or how did the Board fail to attain high standard of fairness or was procedurally unfair or improper, or what relevancy were extra-judicial killings or State Acquiescence or nexus of political parties to the Applicant’s case. None of these assertions were properly elaborated by the Applicant with any necessary details or particulars relevant to his claim, and as such 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 fact is that it has been correctly established by both the Director and the Board in their decisions that the risk of harm in his 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.

14.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.Moreover, the Applicant recently on 3 January 2024 filed an affirmation requesting to withdraw his application as he has been given visa but without any further details or explanation or documentary evidence in support of his assertion.

16.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 refuse to grant leave and accordingly dismiss his leave application.

Dated the 16^th 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