MUHAMMAD IMRAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 2678/2018

[2022] HKCFI 1606

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2678 of 2018

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 the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of Pakistan who entered Hong Kong illegally on 11 December 2007 and was arrested by police more than 4 months later on 22 April 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the local supporters of the political party Pakistan Peoples Party (“PPP”) as he supported their rival Pakistan Muslim League (N) (“PML(N)”) and was falsely accused of killing one of their people. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Mureed-K, Sheikhu Pura, Pakistan. After leaving school, he worked in the factory, and supported PML(N) by regularly attended their local meetings and rallies.

3.  One day in 2007, while he and his fellow PML(N) supporters were gathering in his home district for a party meeting for the up-coming general elections, they were confronted and attacked by a group of PPP supporters, during which some supporters from both sides shot at each other with their pistols resulting in the death of a PPP supporter.

4.  The Applicant did not participate in the fight and managed to escape from the scene unharmed and fled home. However, several days later he heard that the PPP supporters had made a report to the police falsely accusing him and his fellow PML(N) supporters of being responsible for the death of their PPP supporter in the shooting incident, and later when armed men including the brother of the killed PPP supporter came to his home looking for him, the Applicant fled to Lahore to take shelter in his uncle’s home, and on 26 November 2007 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 29 September 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 2 March 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, that any investigation or prosecution of him by the Pakistani police or authorities of his role in the shooting and killing of one of the PPP supporters were only proper within the legal system of Pakistan and that in the absence of any evidence that he would be denied due process or legal representation in defending such prosecutions that he would be regarded as a fugitive of the law and not be entitled to non-refoulement protection, 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 196 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 part of Pakistan away from his home district in large cities such as Islamabad where it would be difficult if not impossible for those PPP supporters to locate him.

7.  On 12 March 2015 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 17 November 2015 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 28 October 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.  

8.  In its decision the Board found the Applicant’s evidence constantly shifting, unconvincing and unreliable that it doubted the credibility of his claimed fear of harm for his departure of Pakistan for Hong Kong and which had further been undermined by his failure to raise the claim upon his first arrival in Hong Kong until more than 4 months later and only after his arrest by the police, and given that the political situation in Pakistan had since changed when PPP were no longer the ruling party that it concluded that the Applicant had failed to establish his claim of fear harm as asserted or in the foreseeable future upon his return to Pakistan that his application for non-refoulement protection failed on all applicable grounds.         

9.  Meanwhile on 18 January 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 7 February 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 Risk being violated upon his return to Pakistan.

10.  On 17 February 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, but for which the Board did not hold any further oral hearing and dealt with the matter in the absence of the Applicant and on paper, and on 9 November 2018 it again dismissed his appeal and also confirmed the further decision of the Director.

11.  In this decision the Board found in the absence of any new or additional facts submitted by the Applicant either to the Director or the Board and on the basis that it had earlier rejected his claim under other applicable grounds on credibility that it concluded that the Applicant’s claim or appeal also failed on the BOR 2 ground.

12.  On 26 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board regarding his BOR 2 claim, and put forward the following grounds for his intended challenge:

(1) Misdirection in law by taking account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2) Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3) Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4) Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Pakistan;

(5) Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in Pakistan and misdirected himself as to the extended meaning of state protection;

(6) Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision; and

(9) Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.  

13.  These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any 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 take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case  or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant who also failed to attend the hearing of his application without any explanation, and as such I do not find any of them reasonably arguable for his 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 Applicant’s case, the Board having earlier rejected his claim under torture risk, CIDTP and persecution risk on its adverse finding as to his credibility for the analysis and reasoning stated in its first decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim and of which the Applicant has never brought any challenge by way of judicial review or by any other legal process and for which he would have been seriously out of time in any event, and in the absence of any new or additional facts submitted by the Applicant in support of his BOR 2 Claim, the Board was in my view perfectly entitled to exercise its discretion not to hold another oral hearing and to deal with his appeal on paper, and that it was also entirely correct to reject his appeal regarding his BOR 2 Claim for its given reasons.

16.  In any event, on the factual basis of the Applicant’s own case, and due to the limited scope of BOR 2 Risk, the Applicant’s claim simply did not engage the BOR 2 ground. As such, 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.                 

17.  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 under the BOR 2 or any of the other applicable grounds.

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