Case Document

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HCAL 3225/2019

[2024] HKCFI 2612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3225 OF 2019

BETWEEN
	Kamran	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 35-year-old national of Pakistan who entered Hong Kong illegally on 12 December 2015 and surrendered to the Immigration Department on 16 December 2015 when 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 Peoples Party (“PPP”) as he supported their rival Pakistan Muslim League (N) (“PML(N)”).

2.The Applicant was born in Lahore, Pakistan and raised in Attock, Hazro Tehsil Horoon Bara, Pakistan where he assisted his parents in their farming, and supported PML(N) regularly attended their local meetings and activities.

3.In about mid-2015 he was approached by a group of local PPP supporters to join their party, but when he refused, they then uttered threats against him that they would eventually kill him if he failed to heed their demand.

4.Fearing for his safety the Applicant on 8 December 2015 left for Lahore, and 2 days later on 10 December 2015 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 5 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 27 July 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”).

6.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 PPP supporters upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm him which even on the Applicant’s own case that they had never caused him any physical harm other than just empty verbal threats, nor was there any political reason for them to specifically target him or to have any adverse interest in him 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 205 million people spread across a vast territory of more than 770,000 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 or Lahore where it would be difficult if not impossible for anyone to locate him.

7.On 7 August 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he failed to attend the scheduled hearings either on 2 or 10 September 2019 without any valid reason or justification, whereupon the Board proceeded to deal with his appeal in his absence and on paper based on his evidence and material provided earlier to the Director and were available before the Board. On 2 October 2019, his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim of fear of harm from those local PPP supporters that caused him to leave his country to come to Hong Kong for protection and in the absence of any oral evidence from him to explain or clarify those inconsistencies as found by the Board when he failed to attend 2 scheduled hearings for his appeal without any valid reason or explanation, and that in the absence of any evidence of any actual physical harm inflicted by those PPP supporters or by anyone or any reason why he could not seek state or police protection or to relocate to other areas of the country away from his home district without any risk of being located by anyone that it is not accepted that the Applicant had faced any such risk in his home country prior to his departure or that he will face any such risk upon his refoulement to Pakistan that the Board concluded that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.

9.On 29 October 2019 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 was not satisfied with the decision but without putting forward any proper ground for his intended challenge. 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.

10.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.

11.In the Applicant’s case, 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.

12.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.

13.Moreover, the Applicant recently on 19 August 2024 in writing requested to “close” his case as he now wants to return to his home country but without any explanation as to what has happened to his claimed risk in Pakistan.

14.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 application.

Dated the 26^th day of September 2024

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 26 September 2024 Kamran Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 26 September 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 12846/18/8/116/P2500 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2431/18 (Formerly RBCZ 12666/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)