MUHAMMAD ALI PAHAT v. TORTURE CLAIMS APPEAL BOARD

HCAL 2700/2019

[2023] HKCFI 1922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2700 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 47-year-old national of Pakistan and had been a repeated offender of illegally entering and staying in Hong Kong last entered Hong Kong illegally again on 29 January 2004 and was arrested by police almost 3 years later on 7 January 2007 for possessing an identity card of another person, illegally staying in Hong Kong and resisting arrest, for which he was subsequently convicted and sentenced to prison for 15 months, during which he raised a torture claim with the Immigration Department on the basis that if he returned to Pakistan he would be harmed or killed by certain local leader of the political party Pakistan Muslim League (N) (“PML(N)”) over some election dispute with the Applicant’s elder brother of rival party Pakistan People’s Party (“PPP”), 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 Village Ahsul Suleman, District Lahore, Pakistan. After leaving school he worked in his family’s farmland in his home village where his father was once the local PPP president in Lahore who also won the 1977 election to become a member of the National Assembly.

3.  The Applicant’s elder brother Nadeem also followed their father’s tradition to join PPP and was elected the chairman of the Union Council of Pandokey, and in 2001 he stood for re-election during which the Applicant as a PPP supporter also assisted Nadeem in his re-election campaign against the PML(N) candidate Mansha, and after several violent confrontations between the 2 parties during which both the Applicant and other members of his family had been subjected to violent attacks, and after one occasion when 2 of Mansha’s men Mushtaq and Bakhtawar opened fire with their pistols at Nadeem’s supporters that both the Applicant and his other brother Naeem as well as some other relatives were injured and were subsequently taken to the hospital for medical treatments.

4.  Nadeem then reported the shootings to the police and arrest warrants were issued against Mushtaq and Bakhtawar who had then gone into hiding, but after Mansha subsequently won the 2002 election, he still regarded Nadeem as a political threat and continued to make threats and attacks against Nadeem and his family, and to avoid being caught in between their conflicts, the Applicant fled the country to come to Hong Kong on 14 September 2001 on a passport with a false identity, and was subsequently arrested by police and deported back to Pakistan on 17 November 2001.

5.  Upon returning to his home village, while attending a religious festival in 2002, the Applicant and his family members endured another shooting attack by Mushtaq who was in fact still running from the police’s arrest warrant, during which another brother of the Applicant Naeem was injured and was taken to the hospital for treatments.

6.  After another attack on Nadeem in 2003 when the assailant mistakenly shot another brother of the Applicant who was driving Nadeem’s car, and the brother suffered serious injuries to his shoulder and was hospitalized for 3 months, the Applicant again felt it was not safe to remain in Pakistan, and so on 30 March 2003 he departed for Hong Kong again on another passport with a false identity, and was arrested by police on 5 April 2003 and was repatriated to Pakistan on 30 May 2003.

7.  Upon returning to Pakistan, as the Applicant was still fearful of further threats from Mansha or the PML(N) people, and so in January 2004 he again departed Pakistan but this time for China, and from there he later sneaked into Hong Kong, and after his arrest by the police some 3 years later, he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 27 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 23 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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that he would be in danger of being harmed by Mansha or his people upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any intention of Mansha to serious harm or kill the Applicant in his political dispute with the Applicant’s elder brother who had however since 2008 ceased his political involvement in PPP and had been residing in the same home village without further incidents, that PPP had subsequently also become the ruling party that 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 201 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 Islamabad where it would be difficult if not impossible for anyone to locate him.

10.  On 7 July 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 19 November 2018 and 3 December 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 August 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board accepted the Applicant’s claim of political dispute between his elder brother Nadeem and the local PML(N) leader Mansha but found significant inconsistencies and discrepancies in his evidence that it doubted his claim of fear of harm from Mansha or his followers that caused him to come to Hong Kong, and that in any event it was a private dispute between Mansha and the Applicant’s brother without any evidence or political reason of any real threats directed against the Applicant, nor was there any state or official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

12.  On 16 September 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Adjudicator had erred in concluding that the Applicant was not a credible witness for not providing satisfactory explanations for numerous discrepancies in his claim when the fact that the Applicant was referring to incidents that occurred in Pakistan some 20 years ago that the Adjudicator failed to consider that it is natural human nature that memory may fade out over the years and that the Applicant may not be able to remember the details of such events;

(2)  That the Adjudicator failed to consider that the Pakistani government would not be able to protect the Applicant due to the fact that corruption and incompetency of the Pakistani police are still extremely serious, while reports published by Human Rights Watch in 2016 show that human rights abuses were carried out by the police on a regular basis, and hence the situation in Pakistan is still tremendously dangerous for her citizens;

(3)  That the Board failed to apply high standards of fairness in its determination that reasonable state protection would be available to the Applicant in applying the wrong test resulting in an unreasonable understanding of the basis of the Applicant’s claim;

(4)  That the Adjudicator had erred in concluding that the Applicant is not at real risk of ill-treatment on his return to Pakistan upon concluding that the intention of Mushtag or Bakhtawar to harm the Applicant was due to highly personal nature related to revenge for the alleged assaults inflicted on each other’s families instead of the fact that it was due to different political differences between them.

13.  Those grounds are however all just broad and vague assertions of his containing a few key words or phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator err in finding significantly inconsistent and conflicting evidence as to his claim of fear of harm from Mansha or his men Mushtag and Bakhtawar when he clearly kept changing and shifting the factual basis of his alleged fear of harm from them in his evidence before the Board and as recorded in details in the decision. As such, and as none of these assertions were elaborated or presented with any relevant particulars or specifics by the Applicant, 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 rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 69 – 97 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim in 2 hearings before the Board, 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 findings of the Board.

16.  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 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.

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 accordingly I 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