Case Document

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HCAL 2326/2019

[2024] HKCFI 3247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2326 OF 2019

BETWEEN
	Khokhar Jamil Arshad	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 40-year-old national of Pakistan, who entered Hong Kong illegally on 26 January 2016 and surrendered to the Immigration Department on 23 February 2016 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 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 Mohalla Jinnah Colony, Jalalpur Jattan, Gujrat, Punjab, Pakistan. After leaving school he worked as mechanical welder and machine operator, got married and raised a family with 3 children in his home district, and supported PPP regularly attended their local meetings and activities.

3.During the local election in May 2013, some local PML(N) supporters would come to the Applicant to invite him to join their party, but the Applicant would invariably refused their invitation. However, after PML(N) had won the election, those PML (N) supporters started to harass and intimidate the Applicant by making threats against him, and on one occasion in August 2013 they assaulted him by punching and kicking him, and thereafter made false charges against him to the police that he was arrested and detained for interrogation for weeks before eventually being released without charge after his family had paid a bribe to the police.

4.Yet the intimidations and assaults from those local PML(N) supporters would persist, and after one particularly violent incident in late 2015 when those PML(N) supporters threatened to shoot him with their pistols but the Applicant managed to make his escape and subsequently fled to Islamabad, and on 24 January 2016 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 20 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 23 January 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 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 or political reason for them to specifically target the Applicant given that he was just an ordinary PPP supporter without holding 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 where it would be difficult if not impossible for anyone to locate him.

7.On 5 February 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 22 January 2019 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 22 July 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 evidence that it rejected the credibility of his claim of fear of harm from those local PML(N) people that caused him to leave the country to come to Hong Kong to seek protection, that his lack of knowledge or information as to his claimed political involvement in PPP and his production of faked PPP documents further undermined the credibility of his claim that it concluded that he had fabricated his claim so as to create a basis upon which to apply for non-refoulement protection that his claim for non-refoulement protection failed on all applicable grounds.

9.On 13 August 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 confused in his evidence given at his appeal hearing before the Board but without providing any necessary or relevant details or particulars or elaboration, nor was he able to put 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: ReLakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst vDirector of Immigration [2018] HKCA 524.

11.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 31 – 53 of 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.

12.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 vJenkins & Anor [2013] 1 HKC 526.

13.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.

14.Moreover, the Applicant recently on 9 September 2024 filed an affirmation requesting to withdraw his application and to return to his home country but without providing any further explanation or reasons for his request.

15.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 21^st day of November 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 21 November 2024 Khokhar Jamil Arshad 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 21 November 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 10200/18/2/84/P1966 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3506/17 (formerly RBCZ 11687/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)