MUHAMMAD NASEER v. TORTURE CLAIMS APPEAL BOARD

HCAL 200/2019

[2023] HKCFI 2533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 200 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 Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 48-year-old national of Pakistan who arrived in Hong Kong on 7 May 2000 as a visitor with permission to remain as such up to 20 May 2000 as extended when he did not depart and instead overstayed, was arrested by police after more than 6 years on 26 June 2006 for which he was subsequently convicted and sentenced to prison for 15 months. After his discharge from prison and was referred to the Immigration Department for deportation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by a cousin of his father over their land dispute in his home village, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Moh Khanan, Teh District, Attock, Pakistan where he inherited some farmland from his grandfather on which he would farm after leaving school.

3.  In about 1997 a paternal cousin of his father, Najab raised issue over the title of the Applicant’s land by claiming to be its rightful owner and demanded that the Applicant gave up possession of the land to him, and when the Applicant refused, Najab one day in early 2000 came with his men and attacked the Applicant with wooden sticks that he suffered cuts and bruises all over his body.

4.  Thereafter Najab made false claims against the Applicant to the police who arrested the Applicant and detained him for 3 days for interrogations during which he was beaten by several policemen before he was eventually released without charge.

5.  After the incident the Applicant became fearful for his life and fled to Karachi, and on 7 May 2000 he departed Pakistan for Hong Kong when he overstayed, and after he was arrested by police some 6 years later he raised his torture claim, and after it was rejected by the Immigration Department he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 18 April 2017 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interview before an immigration officer due to alleged medical reasons.

6.  By a Notice of Decision dated 9 June 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

7.  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 Najab and his men upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that in any event it was a private land dispute between the 2 of them within their family without 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 199 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 adult with working experience to move to other areas of the country away from his home district in large cities such as Karachi or Islamabad where it would be difficult if not impossible for Najab to locate him.

8.  On 22 June 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 3 oral hearings on 23 May 2018, 8 June 2018 and 10 August 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 11 December 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found inconsistencies discrepancies and implausibility in the Applicant’s evidence that it did not find him to be a credible witness and doubted his claim of fear of harm from Najab over their alleged land dispute that caused him to leave his home country to come to Hong Kong for protection, that the credibility of his claim was further undermined by his failure to raise it upon his first arrival in Hong Kong until after his arrest by the police more than 6 years later and his failure to co-operate with the Immigration Department in proving his claim that it rejected entirely his claim of a land dispute with Najab in his home village as just a fabrication, and concluded that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 22 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he cited various legal precedents and put forward various grounds for his intended challenge which can be summarized as follows:

(1)  That the Adjudicator failed to apply high standards of fairness when it sought to challenge the Applicant’s credibility without conducting any oral hearings and thereby failing the tribunal’s obligation of procedural fairness;

(2)  That the Adjudicator took account of irrelevant consideration in assessing the Applicant’s claim and rendered a refusal decision;

(3)  That the Adjudicator after reviewing the case gave no proper reasons for the decision after having all the information he needed without a fair oral hearing;

(4)  That the Adjudicator failed to take into account of all the COI materials from the hearing bundle before rejecting the basis of the Applicant’s claim and instead relied on source of news not officially recognized or were simply hearsay or outdated which resulted in making groundless speculations that that there would be no risk for the Applicant to return to his home country;

(5)  That the Adjudicator had done a shoddy job, inconsiderate and had failed miserably.

11.  These are however all just some broad and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to apply high standards of fairness or to give proper reasons for the decision, or how did the Adjudicator fail to take into account relevant COI or what source of news or COI were not officially recognized or were hearsay or outdated, while the complaint of no oral hearing for his appeal is simply factually incorrect as the record shows that the Applicant in fact attended not 1 but 3 oral hearings before the Board during which he was able to properly and fully present his case to the Adjudicator with the assistance of an interpreter without any problem. As such I do not find any of his proposed grounds reasonably arguable for his intended challenge.

12.  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.

13.  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 91 – 132 of its decision with the benefit of hearing him over 3 hearings 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.

14.  The fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  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.

16.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly refuse his leave application.

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