Shahzad Khuram v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2055/2023 on BabelCite. This High Court CFI judgment was delivered on 1 November 2024.
1. This is an application by Mr Shahzad Khuram (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 3 November 2023 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 10 September 2021 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).
Cites 3 cases
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HCAL 2055/2023 [2024] HKCFI 3082 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2055 of 2023
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge Reuden Lai:
Observation for the Applicant: Introduction 1.This is an application by Mr Shahzad Khuram (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 3 November 2023 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 10 September 2021 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”). Background of the Applicant 2.The Applicant is a Pakistani. He was born on 12 July 1992 in District Gujrat, Punjab, Pakistan. He received 16 years of education and his post-graduate study was in biomedical engineering. He had 3 years of work experience as a salesman. The Claim 3.The Applicant relied on the following facts for his claim. He was an active member of the political party Pakistan Tehreek-e-labaik (“TLP”). He claimed that he would be harmed by the Pakistani police or the supporters of the rival political party, Pakistan Tehreek-e-Insalf (“PTI”), upon his return to Pakistan. 4.The Applicant claimed that he joined a protest with fellow TLP members in 2018. The Pakistani police used tear gas and wooden sticks to disperse the crowd and arrested some protestors. The Applicant was arrested and charged with damaging public property, using loudspeakers without authorization and organizing rallies and events against the government. He was detained for a few days and was released by the police after the TLP leaders reached an agreement with the government. 5.The Applicant claimed that he had also been targeted by PTI supporters and received threats from them over the phone and messengers. They threatened to kill the Applicant if he kept supporting the TLP. 6.The Applicant had also been attacked twice in January and May 2019. He did not go to hospital after the January attack. In the May attack, the Applicant was attacked with wooden sticks by 10 people, who demanded that he stopped supporting the TLP. The Applicant lost consciousness from the attack and was hospitalized for 6 days. 7.He was also threatened once with death in February 2019 to quit the TLP. 8.The Applicant fled to Islamabad in around June 2019 to stay with his friend. He stayed in Islamabad until 26 December 2019 when he travelled to Hong Kong for protection. Nothing eventful happened during his stay in Islamabad. Procedural history 9.The Applicant arrived in Hong Kong on 26 December 2019 as a visitor and was permitted to stay until 4 January 2020. He overstayed and surrendered to the Immigration Department on 20 November 2020. By a written representation of 8 December 2020, the Applicant lodged the Claim. 10.The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:
11.By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal. 12.On 17 November 2023, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and interested party. 13.On 30 July 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application stating that the problem in his country had been solved (“Withdrawal Application”). The DOI Decision 14.After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that the PTI people or the Pakistani police posed a real and foreseeable harm to the Applicant upon his return to Pakistan. 15.Although the Applicant asserted that the PTI supporters had real intention to impose serious harm on him or even kill him, the threats had never been effectuated despite opportunities should be ample in the material times during their encounters when they were carrying wooden sticks and pistols. It suggested that they did not have any real intention to impose serious harm on the Applicant, not to mention killing him. 16.There was no evidence to show that the PTI supporters had acted with the state’s consent or acquiescence or that their threats or ill-treatment against the Applicant were inflicted at the instigation of a public official or other persons acting in an official capacity. 17.The Applicant had only been arrested once by the Pakistani police due to the protest in October 2018. He was subsequently released. There was no information suggesting that he had ever suffered any ill-treatment or harm from the police. The Applicant still approached the police to report the May 2019 attack and the police did not refuse to help him. They did register the Applicant’s report. This indicated that the Applicant’s perceived fear for his safety and life from the police was not as dominant as he claimed or he was not facing any imminent risk of serious ill-treatment from the police at that time. 18.The Applicant was able to apply and use his own passport to depart Pakistan without any hindrances. He was not adversely targeted by the Pakistani police or government authorities. On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant if necessary. 19.The Director further found that internal relocation would be viable. There was no substantial ground to believe that the PTI supporters had the ability and resources to locate the Applicant all over Pakistan. If the Applicant moved to Hyderabad or Karachi, the PTI people would have great difficulty in locating him. After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life. 20.For the reasons set out in the DOI Decision, the Director rejected the Claim. The Board’s Decision 21.The Board accepted that the Applicant involved with the TLP and accepted that he could not return to his home locality (§78 of the Board’s Decision) due to the perceived danger from the local PTI supporters. However, the Board held that the risks from the PTI members in his home locality could be mitigated by the Applicant relocating to Hyderabad or Karachi, where the PTI had substantially less influence in, and it would not be unduly harsh to expect him to do so. 22.In finding that internal relocation would be viable, the Board considered the fact that he had left Pakistan for a few years since 2019 and the Applicant was able to stay safely in Islamabad in the past, which was only around 170 km from his home locality. The Board also considered his age, education and work experience and found that he was “highly employable” and could start a new life in another locality. 23.The Board further found that adequate state protection would be available to the Applicant upon his return to Pakistan (§84 of the Board’s Decision). 24.The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal. Legal principles applicable to judicial review 25.In a judicial review, the court does not step into the shoes of the decision makers. 26.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:
27.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success. Discussion 28.The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affirmation, the Applicant only stated that: “I don’t want to return back to my country because my life is still in danger in my country. So it’s my kindly request to the Court to please grant me apply for judicial review.” He then produced the Board’s Decision as exhibit to the Supporting Affirmation but no other supporting documents. 29.No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 30.Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness. 31.The Board found that the Applicant could safely and reasonably relocate to other areas in Pakistan upon his return to avoid his perceived risk of harm and reasonable state protection would be available to him. 32.It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are finding of facts which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable. The Withdrawal Application 33.The Applicant subsequently filed the Withdrawal Application on 30 July 2024 stating that the problem which he had in his country was solved. He requested to withdraw his case. 34.There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition. 35.Apart from the Withdrawal Application, there is nothing outstanding in this action. 36.The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:
Conclusion 37.In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with a realistic prospect of success, I accordingly dismiss this application for leave to apply for judicial review. Dated the 1st day of November 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
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Cases cited in this judgment