ALI MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1169/2018

[2019] HKCFI 2586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1169 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 41-year-old national of Pakistan who entered Hong Kong illegally on 15 December 2013 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on thebasis that if he returned to Pakistan he would be harmed or killed by his creditors for failingto repay his loans, and/or by supporters of rival political party Pakistan Muslim League (N)(“PML(N)”), and/or by certain Christians of a local community in revenge for burning downtheir church.  He was subsequently released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Samanabad, Lahore, Punjab, Pakistan.  After leaving school he worked in an auto part company, got married and raised his family in Lahore.

3.  In 2001 he started his own auto parts business by borrowing loans from two businessmen in Lahore repayable within five years by monthly instalments.

4.  However, his business did not fare well and by 2002 he started to have difficulty making his loan repayments, and when being pressed by his creditors, a heated quarrel ensuedfollowed by a fight during which he was punched on the face which caused a cut to his lips. His creditors then warned him that if the loans were not repaid soon, he would be in trouble.

5.  A few days later the applicant was only able to make some payments to his creditorswho were unhappy and made a complaint to the police accusing him of cheating their money. When the applicant heard that the police were looking for him, he fled to his sister’s place inKarachi where he was advised to leave the country for his own protection, and so he departed Pakistan on 29 October 2002 for Hong Kong where he overstayed and was subsequently arrested by police in 2008 when he raised a torture claim, and when it was rejected by the Immigration Department, he was repatriated to Pakistan in May 2012.

6.  Upon returning to his home district in Lahore, the applicant sought shelter at his sister’s home to avoid his creditors, and when he was eventually confronted by them, with the help of some friends he was able to persuade his creditors to give him a further six months to pay off his loans.

7.  Thereafter he returned to his home village in Lahore where he joined the political party Pakistan Tehreek-e-Insaf (“PTI”) organizing meetings and campaigning for the party during elections, during which he and his fellow supporters were frequently harassed and threatened by supporters of rival PML(N), and on one occasion in April 2013 they were dragged out of their local PTI office onto the street where they were punched and kicked by those PML(N) supporters that the applicant became afraid for his life that he quit his party after the general elections in May 2013.

8.  One week thereafter he attended a wedding party in the town of Allama Iqbal during which he and other guests were playing with firework which accidentally caused a fire to a local Catholic church, for which he was blamed by the villagers and a report was made to the police.  As a result, he was subsequently arrested and charged for causing the fire, and was sentenced by the court to prison for three months.

9.  Upon discharge from prison, the applicant heard that the local Christians were still angry with him and were planning to take revenge against him, and fearing also the threats from his creditors over his loans, he decided to leave Pakistan again to save his life,and so on 9 December 2013 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 15 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

10.  By a Notice of Decision dated 31 August 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights (“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”).

11.  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 there will be any real and substantial risk of being harmed or killed upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from his perceived enemies, that in the absenceof official involvement that state or police protection would be available to the applicant ifresorted 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 770,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of Pakistan away from his home district in large cities such as Karachi or Islamabad where it would be difficult if not impossible for his perceived enemies to locate him.

12.  On 12 September 2017 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 27 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 21 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

13.  In its decision the Board accepted that the applicant might have owed money to his creditors but found no evidence that he had been ill-treated by them to the minimum level of severity under any of the applicable risks, or that he had been specifically targeted by PML(N) supporters and that after he had quit PTI in 2013 that they would have no adverse interest in him, that the same was about his claimed fear of harm from the local Christians for causing a fire to their church for which he had already been punished by the court, and that in any event with reasonable internal relocation available within Pakistan that it would not be unreasonable or unduly harsh for him to move safely away from his home district toother big cities such as Karachi or Faisalabad that his claim for non-refoulement protection failed on all applicable grounds.

14.  On 22 June 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he was not satisfied with their decisions but without providing any particulars or specifics or elaborations as to why he was not satisfied, nor did he identify any error of law or procedural unfairness in his process before them or in their decisions.  As such I do not find any reasonably arguable basis for his intended challenge.

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.  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 the applicant’s 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 orprocedural 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