Ali Khurram v. Torture Claims Appeal Board

HCAL 2043/2020

[2024] HKCFI 1234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2043 OF 2020

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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 39-year-old national of Pakistan who entered Hong Kong illegally on 15 October 2015 and was arrested by police on the following day 16 October 2015.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection 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 Gujapeer, Kachiabadi, Lahore, Pakistan. After leaving school he worked as an embroidery worker and then a salesman in Faiz Bagh where he married his wife and raised a family with 2 children, and followed his family’s tradition to support PML(N) regularly attended their local meetings and activities, during which he and his fellow supporters often came into hostile conflicts and confrontations with rival PTI supporters.

3.In 2013 a number of local PTI leaders had been murdered, and soon their supporters started to accuse some of the PML(N) supporters including the Applicant of being responsible for their murders, and one day in July or August 2013 two such PTI supporters confronted the Applicant and his cousin who was also a PML(N) supporter on the street and shot at them with their pistols that hit his cousin in the left leg, while the Applicant was struck in his right eye-brow by the gun handle, and before they drove away those assailants threatened that next time they would kill them.

4.After the attack the Applicant and his cousin became fearful for their safety and fled to Karachi to take shelter in a relative’s place until mid-2015 when they returned to their home in Faiz Bagh.

5.However, soon thereafter those PTI supporters came to their home to fire gun shots outside. As such threats and intimidations persisted, the Applicant and his cousin felt it was no longer safe to remain in Pakistan, and so on 7 October 2015 they departed for China, and from there they later sneaked into Hong Kong, and upon his arrest by the police the Applicant then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 November 2018 and attended screening interview before the Immigration Department with legal representation.             

6.By a Notice of Decision dated 27 December 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 risk of harm from those local PTI 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 of any real intention of them to seriously harm or kill him or any political reason for them to specifically target him for harm given that he was just an ordinary PML(N) supporter without 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 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 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 those local PTI supporters to locate him.

8.On 28 January 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 9 June 2020 before the Board during which he did not give further evidence but did answer questions raised of his claim by the Adjudicator for the Board, and that he also revealed while in Hong Kong he has married a local resident and raised a family with 2 children that he does not want his family relationship with his wife and children be disrupted by being deported back to Pakistan. On 12 August 2020 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 evidence that it doubted the credibility of his claim of fear of harm from those local PTI supporters that caused him to leave his country to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of those PTI supporters to seriously harm or kill him or to have any political reason to specifically target him for harm given that he was just an ordinary PML(N) supporter without any official post in the party, that his alleged marriage to a local Hong Kong resident with a family of 2 children has in law no relevancy to his non-refoulement claim, and that in any event 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 alternatives for him to move safely to other parts 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 9 October 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge. In his written submissions produced at the hearing of his application he just repeated his claim as before and that he has since arriving in Hong Kong married a local resident and raised a family with 2 small children here that he does not want to be deported from Hong Kong such that his family relationship with his wife and children would be unfairly disrupted and contrary to the best interest of his children.

11.However, it has been well established by the Court of Final Appeal in the joint appeals of Comilang, Milagros Tecson & Anor v Director of Immigration, FACV 9 of 2018 [2019], and Luis, Desiree Rante & Others v Director of Immigration, FACV 10 of 2018 [2019], HKCFA 10, that a person who has no right to enter and remain in Hong Kong cannot circumvent that position by relying on the rights of his children or family to do so in order to be with his children or family as it is a matter of the Hong Kong constitutional law in which the Director in exercising of his discretion to refuse permission to stay is under no duty to take into account the various rights of others relied upon.   

12.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 of the Director’s decision.

13.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.

14.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 49 – 68 of its decision with the benefit of hearing him in his oral 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.

15.Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective decisions 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.                

16.In the premises, and 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.

17.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 7^th day of May 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