Baig Mirza Sher Abbas Alias Sher Abbas v. Torture Claims Appeal Board

HCAL 2425/2020

[2024] HKCFI 2251

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2425 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 29-year-old national of Pakistan who entered Hong Kong illegally in May 2017 and was arrested by police on 28 June 2017.  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 Muslim League (N) (“PML(N)”) as he supported their rival Pakistan Tehreek-e-Insal (“PTI”).  

2.The Applicant was born and raised in Village Khokar Malwana, Jhelum, Punjab, Pakistan. After leaving school he trained as a weight-lifter in his home village, and supported PTI regularly attended their local meetings and activities.

3.During the 2015 general election when the local PML(N) leaders were conducting their election campaign amongst the local villagers, the Applicant confronted them and criticized their party’s policies which led to a heated argument between them.

4.Several days after PML(N) won the local election and while he was on his way home, the Applicant was ambushed by a group of PML(N) supporters who assaulted him with wooden sticks and other weapons that he suffered cuts and bruises all over his body, and was subsequently taken to the hospital for medical treatments.

5.After his discharge from hospital, one day while the Applicant was in a shop, the same group of the local PML(N) supporters entered and threatened to kill him if he dared to criticize their party again.

6.Several weeks later in June 2016 while the Applicant was attending a local PTI gathering and was making a speech to his fellow PTI supporters, a group of PML(N) supporters armed with guns and other weapons arrived and dragged him off the stage and beat him severally until other PTI supporters intervened and took him to the hospital for treatments.          

7.After the last incident the Applicant became fearful for his life and fled to a neighboring village to take shelter in a friend’s place before moving on to Karachi, and in late 2016 he departed Pakistan for Iran where he stayed for 3 months before returning to Pakistan where he was afraid to return to his home village and instead stayed in Islamabad.

8.As he was still concerned for his safety, the Applicant in mid-2017 departed Pakistan again for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 2 May 2018 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend or complete any screening interview before an immigration officer due to alleged medical reason.             

9.By a Notice of Decision dated 25 May 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”).

10.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 other than the usual harassments between rival supporters common in the country or any political reason for them to target the Applicant given that he was just a low level member of PTI, 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 young adult to move to other areas of the country away from his home district in large cities such as Islamabad or Karachi where it would be difficult if not impossible for anyone to locate him.

11.On 27 July 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 3 October 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 16 October 2020, his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.In its decision the Board found no credibility at all in the Applicant’s claim of fear of harm from PML(N) supporters that caused him to leave his country to come to Hong Kong to seek protection upon hearing his evidence at his appeal hearing and his admission of never ever been a PTI supporter or involved in any political activities or threatened by any PML(N) people in Pakistan prior to his departure that it concluded that he has failed to establish any ground let alone substantial ground for believing that he will face any real risk of harm or ill-treatment as claimed or of any sort upon his return to Pakistan that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.    

13.On 11 December 2020 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 his supporting affirmation of the same date in which he just stated that he does not agree with the decision but without explaining why or putting forward any proper ground for his intended challenge, nor was he able to do so at the hearing of his application other than just repeating his claim as before of fear of being harmed or killed if returned to his home country. 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.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his 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.

16.Furthermore, the fact is that it has also been established by the Director in his decision 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, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

17.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.

18.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 3^rd day of  September 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