ASIF MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 1274/2018

[2021] HKCFI 1768

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1274 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 37-year-old national of Pakistan who entered Hong Kong illegally on 29 August 2009 and was arrested by the police on the same day. 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 his uncle over some family land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Shinka, District Attock, Punjab, Pakistan. After leaving school he worked on his farmland given to him by his father in his home village.

3.  In about 2006 his uncle approached him with an offer to purchase his land but when it was rejected by the Applicant, his uncle became furious and together with his followers punched and kicked the Applicant severely that he was later taken to the clinic for medical treatments.   

4.  After the assault the Applicant’s father sought help from the village head to resolve the issue but was advised to resolve their family dispute between themselves, and when his uncle later made a false charge against the Applicant who was then taken to the police station where he was beaten by his uncle until he pretended to agree to give up the land to his uncle that he was released, but he then fled from his home village to Peshawar and then to Karachi, Lahore and Islamabad before finally departing Pakistan on 21 August 2009 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 6 November 2014 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any scheduled screening interview before an immigration officer due to alleged medical reasons.  

5.  While being released on recognizance pending determination of his claim, the Applicant was again arrested by the police on 28 May 2010 for undertaking unauthorized employment for which he was later convicted and sentenced to prison for 15 months.   

6.  By a Notice of Decision dated 22 May 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”).

7.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that the risk of harm from his uncle is likely to materialize upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from him, that it was a private family land dispute between them 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 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 parts of Pakistan away from his home district in large cities such as Karachi or Lahore where it would be difficult if not impossible for his uncle to locate him.

8.  By a Notice of Further Decision dated 17 August 2017 the Director again rejected the Applicant’s claim in the absence of 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”).

9.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 29 June 2015, for which he failed to attend the 2 scheduled hearings for his appeal due to alleged medical reasons but that on both occasions he was represented by his lawyer from DLS and that submissions were made on his behalf for his appeal. On 11 June 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found no good or sufficient medical reasons from the Applicant for his failure to attend the scheduled hearings twice to justify scheduling a third hearing for him, that during both hearings that he was already represented by his lawyer from DLS and with submissions being made on his behalf, and that given the facts that he failed to seek any help upon his arrival in China, that he entered Hong Kong illegally and subsequently undertook unauthorized employment all show his dishonesty that it found no credibility in his claim, and that in any event with reasonable internal relocation for him to safely move to other areas of Pakistan away from his home district without any risk of being located by his uncle that his claim for non-refoulement protection failed on all applicable ground.

11.  On 4 July 2018 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, and in his supporting affirmation of the same date he stated that the decision was not reasonable as it was made in his absence for being sick in the hospital but that the Board failed to give him the opportunity to explain his case.

12.  The Applicant however also failed to attend the hearing of this application without any explanation, and hence it is not clear what further aspect of his case that he had wanted to explain but was unable to do so before the Board when the Board refused to schedule a third hearing for his appeal, for which the Board in its decision did explain in details why it refused to accept the medical certificates produced by the Applicant as sufficient evidence for his alleged medical issues that had prevented him from attending those two scheduled hearings, and why it was not prepared to schedule a third hearing for the appeal (see paragraphs 4.1 – 4.9 of the decision). Given the Applicant’s similarly unacceptable failure to attend his screening interviews before the Director in the past and the absence of any evidence of any chronic medical issues in him, and that he was already represented by his lawyer in both hearings, I do not find any error in the Adjudicator’s reasoning or anything wrong with the exercise of his discretion under the circumstances not to schedule a further hearing for the Applicant’s appeal, nor do I find any merits in this complaint of the Applicant.

13.  I do however take issue with the way the Adjudicator arrived at his conclusion as to the credibility of the Applicant’s claim, and while the Adjudicator was entitled to rely on Section 37ZD of the Immigration Ordinance by taking into account of the Applicant’s behavior in the assessment of the Applicant’s credibility, the Adjudicator failed to first make any proper findings as to the primary facts of the Applicant’s claim of threats of harm from his uncle over a land dispute, as there is simply no such analysis or finding as to facts by the Adjudicator as to the credibility of such claim anywhere in the Board’s decision, not to mention under the relevant topic of Credibility/Reliability ([34] – [37]) where the Adjudicator just focused on various conduct and behavior of the Applicant after he departed Pakistan, instead of the key material elements of his claim of risk of harm from his uncle as noted above and set out in his NCF and other information disclosed to the Director but which the Adjudicator simply failed to make any finding or assessment of his own in the Board’s decision before rejecting the claim by simply relying on those behavior of the Applicant which are at best only secondary facts for undermining the credibility of the Applicant’s stated primary facts, for which it is clearly in my view an error of law on the part of the Adjudicator.   

14.  Nevertheless, it would not in my view assist the Applicant or advance his case for his intended challenge of the Board’s decision, as the Adjudicator did also find, correctly in this case, from the COI available before the Board the option of reasonable internal relocation within Pakistan available to the Applicant, and that he also rightly agreed with the Director that it would not be unduly harsh for the Applicant as an able-bodied young adult to move to other parts of Pakistan without any risk of being located by his uncle that it was correct for the Board to conclude that the Applicant’s claim for non-refoulement protection failed on all the applicable grounds.     

15.  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.

16.  In the Applicant’s case, as noted above, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim 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.  

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.

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