Abrar Rashid v. Torture Claims Appeal Board

HCAL 1466/2019

[2024] HKCFI 1586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1466 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 38-year-old national of Pakistan who entered Hong Kong illegally on 19 May 2013 and was arrested by police on 20 July 2013. 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 the local supporters of the political party Pakistan Muslim League (N) (“PML(N)”) as he supported their rival Pakistan Peoples Party (“PPP”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Sargodha, Punjab, Pakistan. After leaving school he worked as a carpenter in his home district, and supported PPP regularly attended their local meetings and activities without holding any official post in the party.

3.One day in 2003 while he was on his way to the town, the Applicant was confronted by a group of PML(N) supporters who demanded him to join their party, and when he refused, they attacked him with wooden sticks until restrained by other villagers and that the Applicant was taken to the local hospital for medical treatment.

4.Upon his discharge from the hospital, the Applicant became fearful for his life and fled from his home village to take hide in a cousin’s place in a neighbouring village before moving on to Rawalpindi to stay in his uncle’s place and found a job as a salesman.

5.In 2005 he heard that the PML(N) people had found out his whereabouts, and so he moved to Lahore to take shelter in a friend’s place until 2007 when he returned to his home village, but when he was advised by his father that the local PML(N) supporters were still looking for him that he should save his life by leaving the country, he then left Pakistan for Dubai where he worked as a carpenter until 2010 when he returned to Pakistan.

6.However, when he was told by his father that those local PML(N) supporters were still looking for him, the Applicant made arrangements to leave the country again, and so on 16 May 2012 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 1 June 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 18 April 2017 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”).

8.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(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 of any real intention of them to seriously harm or kill him or any political reason for them to specifically target him given the fact that he was just an ordinary PPP supporter without any official post in the party, that in any event in 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 201 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.

9.On 26 April 2017 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 12 September 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 May 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s evidence of being a PPP supporter and his various confrontations with the local PML(N) supporters prior to his departure of Pakistan but found no reliable evidence of any real intention of those PML(N) supporters to seriously harm or kill him or any political reason for them to specifically target him given that he was just an ordinary PPP supporter without any official post in the party, 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.

11.On 30 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his Form and supporting affirmation he put forward the following grounds for his intended challenge:

(1)  That the Board was in breach of procedural fairness in unlawfully fettering its discretion by refusing the Applicant’s appeal on the ground that they did not satisfy the requirements;

(2)  That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  That the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated resulting in groundless speculations that it is safe for the Applicant to return to his home country;

(6)  That the Board reached the wrong decision in assessing the Applicant’s non-refoulement claim without any proper inquiry and without careful understanding of his situation; and

(7)  That the hearing bundle was given to the Applicant just a few days before his appeal hearing before the Board with the majority of the documents in English which gave him insufficient time to prepare for his appeal due to his limited skills in English and that he was without legal representation that it was procedurally unfair to the Applicant.

12.These are however all just some bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or that the Adjudicator act in a procedurally unfair manner, or what source of news or COI that the Board relied on were not officially recognized or were mere hearsay or outdated, or how did the Board fail to make proper inquiry or without proper understanding of the Applicant’s situation in his home country. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

13.As for his complaint of being given the hearing bundle late with the majority of the documents in English thereby giving him insufficient time to prepare for his appeal before the Board, the Applicant did not provide any documentary evidence such as the covering letter for the hearing bundle to show the date when it was given to him to corroborate his assertion, and even if it was indeed the case, it is noted that many of the documents such as his NCF which was prepared on his own instruction had in fact been provided to him earlier during his process before the Director when he was legally represented by a lawyer from DLS, while the Applicant never raised any such issue during his appeal hearing before the Board when he was able to give evidence and make representations for his claim with the assistance of an interpreter without any problem. As such I do not find anything amiss over the provision of the hearing bundle to the Applicant for his appeal, nor do I find this ground reasonably arguable for his intended challenge either.

14.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.

15.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his 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.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.Moreover, the Applicant recently on 27 May 2024 in writing to the Court requested filed an affirmation requesting to withdraw his application as he got married in Hong Kong and obtained residency here.

18.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 his wish to withdraw his application, I accordingly dismiss his leave application.

Dated the 13^th day of June 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