IQBAL MUHAMMAD AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 314/2019

[2024] HKCFI 130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 314 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 1st to 5th Applicants in open court;

Leave for 1^st, 2^nd, 3^rd, 4^th, 5^th and 6^th Applicants to apply for judicial

review refused.

Observations for the Applicants:

1.  The Applicants are a family of 6 with a Pakistani husband as 1^st Applicant (“A1”), his Indonesian wife as 2^nd Applicant (“A2”), and their 3 elder children as 3^rd to 5^th Applicants (“A3”, “A4” and “A5”) who on 11 June 2007 came from Pakistan to China, and from there they subsequently entered Hong Kong illegally on 30 June 2007 and were arrested by police on the same day. After they were referred to the Immigration Department for investigation, they jointly raised a torture claim on the basis that if they returned to Pakistan they would be harmed or killed by A1’s step siblings over some land dispute in their home village in Pakistan, and were subsequently released on recognizance pending the determination of their torture claim, during which A2 on 5 June 2008 gave birth to their youngest child as 6^th Applicant (“A6”) in Hong Kong for whom A1 also raised a torture claim based on the same primary facts and assessed jointly with those of the family, and after their torture claims were rejected in 2012, they then jointly sought non-refoulement protection on the same basis.

2.  A1 now aged 57 was born in Quetta, Baluchistan, Pakistan to his father’s second wife as their only son, while his father also had 9 children from his first wife, but the Applicant was his father’s favourite son in the family.

3.  After leaving school A1 went to work in France for 3 years, and then in 1994 he went to Kuala Lumpur, Malaysia where he met A2, now aged 52 born in Lombok Barat, Nusa Tengara Barat, Indonesia, and who also went to work in Kuala Lumpur in 1994, and in 1995 they married in Malaysia.

4.  In 1997 A1 followed A2 to return to Indonesia where they again registered their marriage so that A1 could stay and made their home there where he also started a business making bamboo sticks, while A2 later on 12 February 1998 gave birth to their eldest daughter A3, now aged 25.

5.  In September 2001 A1 received news that his father had suffered a stroke, and so he brought his family back to Pakistan to be with his ailing father and resided in his father’s house together with his step-siblings, during which A2 gave birth to A4 in 2002 and A5 in 2004, both also daughters now aged respectively 21 and 19.

6.  Upon the passing of his father in 2003, A1 inherited his father’s farmland as the sole owner, of which his step-siblings were most unhappy and demanded that he should transfer the land to them instead, and when A1 refused to do so, they then threatened harassed and ill-treated him and his family especially his wife A2 by bullying her into doing all the household chores and by slapping her face, pulling her hair and hitting her all over the body at will or whenever they were displeased with her performance even when she was pregnant with her child.

7.  The step-siblings also treated A1’s children badly by slapping them around, and on one occasion even poured hot water on A3 scalding her badly that it took weeks for her to recover from her injuries.

8.  Eventually by May 2007 A1 found himself unable to tolerate such ill-treatments on him and his family anymore that he yielded to his step-siblings’ demand to transfer the farmland to them, and left with his family for Rawalpindi thereafter, but as he was still concerned about possible harms from his step-siblings to him and his family in the future, A1 and his family therefore departed Pakistan on 11 June 2007 for China, and from there they later sneaked into Hong Kong on 30 June 2007, and upon their arrest by the police A1 then raised a torture claim for himself and his family, and upon the subsequent birth of A6, now aged 15, in Hong Kong, A1 also raised a similar claim for him on the same basis, and after their torture claim was rejected, they then sought non-refoulement protection on the same basis, for which A1 completed a Supplementary Claim Form (“SCF”) for himself and his family jointly as well as attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.  By a Notice of Decision dated 26 October 2017 the Director of Immigration (“Director”) rejected the Applicants’ claim on all the remaining applicable grounds other than torture risk including risk of their 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 Applicants’ claim and assessed the level of them being harmed or killed by A1’s step-siblings upon their 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 A1 or his family, that there is in fact no reason for them to do so after A1 had given up the farmland to them in 2007 and that after all these years since that it is not accepted that they would still have any adverse interest in A1 or his family especially A6 who was born in Hong Kong that they may not even know of his existence, that in any event it was a private dispute between A1 and his step-siblings without any official involvement that state or police protection would be available to the Applicants 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 A1 and A2 as able-bodied adults with working experience to move their family to other areas of the country away from A1’s home district in large cities such as Rawalpindi where they had stayed before without incidents and where it would be difficult if not impossible for A1’s step-siblings to locate them or for them to move to Indonesia where they can all stay as family members of A2 and A3 who were born there with Indonesian citizenship and without any risk of being located by A1’s step-siblings at all.

11.  On 2 November 2017 A1 lodged an appeal for himself and each member of his family to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they jointly attended an oral hearing on 5 September 2018 before the Board during which A1 spoke on behalf of his family and after adopting those evidence information and materials earlier provided to the Director and contained in the hearing bundle available before the Board, neither A1 nor any member of the family gave further evidence to the Board. On 16 November 2018 their appeals were dismissed by the Board which also confirmed the Director’s decision.

12.  In its decision the Board accepted the Applicants’ claims of fear of harm from A1’s step-siblings which arose from the land dispute between A1 and his step-siblings in their home village in Pakistan but found no reliable evidence of any real intention of them to harm any of the Applicants and with whom they have had no further contact since the Applicants left Pakistan more than 11 years ago in 2007 especially after they have already obtained the farmland and there is no attempt by A1 to try to reclaim it that any fear of any further harm from them is wholly speculative and without basis, that there is no other possible risk under any of the applicable grounds to any of the Applicants in Pakistan or elsewhere, and that in any event it was a private land dispute between A1 and his step-siblings without any official involvement that state or police protection would be available to the Applicants upon their return to Pakistan as well as reasonable internal relocation for A1 to move safely with his family to other part of the country away from his home district without any risk of being located by his step-siblings or for him to consider moving with A2 and their children to Indonesia where they all have right of abode as family of A2 and A3 who were born there and where A1 used to run his own business without any risk of being located that their claims for non-refoulement protection in Hong Kong failed on all applicable grounds.

13.  On 1 February 2019 the Applicants filed their Form 86 as amended 13 April 2023 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form or in A1’s supporting affirmation of the same date in which he just stated that he is not satisfied with the decision but without putting forth any proper ground for their intended challenge, nor were they able to do so at the hearing of their application. As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their 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 Applicants’ case, the Board rejected their claims on its finding of no evidence of any further risk from A1’s step-siblings over their land dispute for the thorough and detailed analysis and reasoning set out in paragraphs 30 - 76 of its decision and with the benefit of hearing A1 in his oral evidence and his answers to questions raised of their claims during their appeal hearing, and in the absence of any error of law or judicial unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.

16.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in the Applicants’ claims if real or still exist that it is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Pakistan away from A1’s home district or to anywhere in Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  I am of course mindful of the fact that A6 being still a minor at the age of 15 is not legally represented in these proceedings as required by Order 80 rule 2 of the Rules of the High Court, nor was he or A4 and A5 who were also minors without legal representation at the time of their appeal before the Board, where in the determination of the non-refoulement claims of minors even if they are based on the same set of primary facts of their parents’ claims, as in the present case that it would be an error of law if the decision-maker simply decided all the claims as though they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately, that it does not necessarily follow from the dismissal of a parent’s claim that the children’s claims could be dismissed without further consideration of their personal situations, and that ill-treatment which does not reach the level of persecution in the case of an adult may do so in the case of a child, hence it would be necessary for this Court to separately consider and examine whether their cases have been properly considered and determined by the Board in a manner sufficient to meet the high standard of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in their appeal process before the Board: see Fabio Arlyn Timogan [2020] HKCA 971 at [34].

18.  There is however no proposition that any decision of the Board in relation to children claimants of tender age must be quashed if they were not legally represented, as what the applicable high standard of fairness requires in a case depends on the facts of that case, as held by the Court of Appeal in Re Jasvir Singh [2021] HKCA 53:

“31. … the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] - [54].

32. If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See: Fabio Arlyn Timogan at [50] - [53], [56] - [57].

33. Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

19.  In the present case, as noted above the non-refoulement claim of A6, now the only minor amongst the Applicants, and for that matter of A4 and A5 who were then minors at the time of their appeal before the Board, was entirely premised on their father’s claim which has been rejected by the Board as no longer real or foreseeable since 2007 after he had given his step-siblings the farmland which was the crux of their dispute upon which the Applicants’ claimed risk of harm arose, and given A1’s confirmation at the appeal hearing to the Board that his step-siblings have since become the legal owner of the land that it was found by the Board, entirely correctly in the circumstances, that such risk no longer exists to A1 upon his return to Pakistan, let alone to his family or children in particularly A6 who was not even born at the time of the dispute and that there is no evidence to suggest that the step-siblings would even be aware of his existence in order to form any desire to cause him harm.

20.  Furthermore, as noted in [62] - [65] of the decision, the Board did go on to consider any other possible grounds or underlying risk which may be specific to the children including A6 as advanced by A1, and again correctly rejected each of them in the way they were advanced, and that it also found that none exists.

21.  It is pertinent to note again that A6 was born in Hong Kong and has never been in Pakistan to personally face any such risk, of which even if real or still persists that the Board also correctly found that state protection and internal relocation would be available to A6 in both Pakistan and Indonesia where he will no doubt also continue to be under the care and protection of his parents. As there is no suggestion of any other possible risk to A6 due to racial or religious issues in either country, and as I am similarly unable to see any underlying matter which may be specific to A6’s claim but which had not or had not been adequately advanced to the Board on his behalf due to lack of legal representation, I do not find any arguable merits in A6’s intended application for judicial review either.

22.  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 each of the Applicants’ claims.

23.  For the reasons given I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I refuse to grant leave and accordingly dismiss their leave application, including that of A6 notwithstanding that he had not been legally represented before the Board or in this judicial review leave application, thus treating the non-compliance with Order 80 rule 2 in his case as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, and discussed in Fabio Arlyn Timogan in [57].

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