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HCAL 221/2019
[2021] HKCFI 470
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 221 OF 2019
BETWEEN
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Pervez Muhammad |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge C P Pang:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is an application for leave to apply for judicial review against the decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”). The Director refused the applicant’s claim of non-refoulement protection. The Board dismissed the applicant’s appeal confirming the decision of the Director.
2. The applicant, born in 1974, is a national of Pakistan. On 26 August 2015, he was arrested by the police and referred to the Immigration Department for investigation. He then lodged a non-refoulement claim. He was subsequently released on recognizance.
3. The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [9-18] of the decision of the Board. Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by members of a political party, the Pakistan Muslim League (Nawaz) (“PMLN”). He claimed that he is a member of another political party, Pakistan Tehreek-e-Insaf (“PTI”). Members of the PMLN used to stop him in the street on many occasions and asked him to leave PTI and join PMLN or they would kill him. On two particular incidents in 2015, he was harmed and threatened by PMLN members. He left his home and lived in Lahore before he departed for Mainland China.
The Director’s Decision
4. By a notice of decision dated 18 April 2018, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated. Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low. He found that state protection is available to the applicant and internal relocation is a reasonable option for him. The decision covered torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.
The Board’s Decision
5. The applicant attended a hearing before the Board on 30 November 2018.
6. By a decision dated 14 January 2019, the Board rejected the appeal/ petition confirming the Director’s decision. The Board’s decision covered all applicable grounds.
7. The Board gave detailed reasons for rejecting the applicant’s claimat paragraphs [39-74] of its decision. In a nutshell, the reasons can be summarized as follows:
(1) while it found inconsistencies in the applicant’s evidence, the Board was prepared to accept the applicant’s claims about his past experiences of harm by members of PMLN in his home village [41-44];
(2) however, any continuing threat to his safety only exists in the localized area of his home district. He could live safely in Lahore or any other parts of Pakistan outside his home district [52];
(3) the applicant did not leave Pakistan immediately after obtaining his visa for China, which is not indicative of a fear of being seriously harmed [53];
(4) he does not have the profile of a person of political significance and there is no evidence to indicate that the men who threatened him in the past have resources or network to pursue him throughout Pakistan [54];
(5) the applicant does not face real chance of harm in Pakistan now and in the foreseeable future [57].
8. Having considered all the evidence and circumstances relied on by the applicant, the Board found that the applicant would not be at real risk of any types of the proscribed harm, if refouled.
9. Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.
Application for leave to apply for judicial review
10. The applicant filed a Form 86 on 23 January 2019 for leave to apply for judicial review of the decisions of the Director and the Board.
11. No request for oral hearing has been made. The application is therefore considered on the papers.
12. The complaints in his affirmation in support and written submission dated 23 October 2020 can be broadly categorised as follows:
(1) There was insufficient time for him to prepare for the appeal hearing as the hearing bundle was provided to him shortly before the Board’s hearing, and there was no interpretation.
(2) The interpreter (at the hearing before the Board) did not translate all he said.
(3) The Board’s hearing was unfair as he was asked unnecessary questions unrelated to his case and the adjudicator had no idea about Pakistan.
(4) PMLN is still powerful in his locality and many people are killed in bomb blast in Pakistan which is a paradise place of terrorists.
(5) The Pakistani police is taking money from his enemy.
Discussion
13. The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.
14. When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will nevertheless examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.
15. In the present case, the Board gave his account of primary facts and events a favourable interpretation. The Board did not take issue with the applicant’s asserted primary facts and events of harm. It however disagreed with the applicant on the assessment of risk flowing from such events. Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the viability of internal relocation.
16. As explained above, the assessments of evidence, risk of harm and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.
17. The Form 86 and supporting affirmation as well as the applicant’s written submission only contained vague and bare assertions, without particulars of relevance and evidence in support. The complaint that he did not have sufficient time in understanding the appeal bundle before the Board has no merit. He did not ask for time or adjournment from the Board for him to understand the bundle which would contain mainly the documents used at the screening interview with an immigration officer. The complaint about inaccuracy of the interpreter’s translation is only his own opinion without evidence in support. It cannot be a viable ground when he himself does not understand the English language. All his complaints are not arguable.
18. I agree with the decision of the Board. The applicant was of a low rank position in his political party. There was no valid reason why PMLN would target the applicant and still wish to pursue the applicant after he left his home locality. Any risk of harm is only localized and such risk will be reduced by relocating to other parts of his country.
19. The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.
20. Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.
21. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.
22. 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, irrational findings, or procedural unfairness in their decisions. Nor do I see any failure on their part to apply high standards of fairness.
23. For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.
Disposition
24. Accordingly, leave to apply for judicial review is refused.
Dated 4 March 2021
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(Chung Lai Fan, Christine) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 4 March 2021
Pervez Muhammad
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 4 March 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 11421/18/5/6/P2218
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 756/18 (Formerly RBCZ 13069/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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