MAQSOOD AHMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 356/2019

[2023] HKCFI 3242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 356 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 who first came to Hong Kong on 13 March 2002 as a visitor with permission to remain as such up to 27 March 2002 when he did not depart and instead overstayed, and was subsequently arrested and repatriated to Pakistan 3 years later on 9 August 2005.

2.  Several months later on 25 December 2005 the Applicant again departed Pakistan for China, and on 21 February 2006 he arrived in Hong Kong as a visitor on a forged Indian passport and subsequently overstayed, and was arrested by police some 6 months later on 8 September 2006 for using a forged passport and for undertaking unauthorized employment, for which he was convicted and sentenced to prison for 15 months. After his discharge from prison and was referred to the Immigration Department for deportation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by a major of the Pakistani army in revenge for killing his son, and after it was rejected, he then sought non-refoulement protection on the same basis.  

3.  The Applicant was born and raised in Chak Sada, Tehsil and District Sialkot, Punjab, Pakistan. After leaving school he ran his own video games store, and on 13 March 2002 he travelled to Hong Kong as a visitor and overstayed, and was subsequently arrested by police and repatriated to Pakistan 3 years later on 9 August 2005.

4.  Shortly upon returning to his home district, the Applicant married his wife, and a week later in about September 2005 they visited her family in Village Patesar near Sialkot Cantt, and on a night out the Applicant had a dispute with 3 unknown men who made some joke about his wife that they got into a fight during which the Applicant was punched in the face and lost consciousness, and was subsequently taken to a local clinic for medical treatment.

5.  The Applicant later made a report of the attack to the local police but was told that one of the assailants was the son of a Major Mushtaq of the Army stationed there that he was advised to drop the complaint to avoid trouble, which the Applicant did and returned home with his wife without further incidents.

6.  About one month later in November 2005 the Applicant with his wife again visited her family in Village Patesar during which they ran into the same 3 men again when they broke into a quarrel during which the Applicant fought with the son of Major Mushtaq and knocked him out with a stick, and thereafter he fled from the scene with his wife who then remained with her parents while the Applicant returned to his home village.

7.  Later the Applicant was informed by his wife that Major Mushtaq’s son had died from his injury in the hospital, but Major Mushtaq had not reported the matter to the police as he decided to take the matter in his own hand by looking for the Applicant to kill him in revenge for his son, and so she warned the Applicant to leave the country to save his life.

8.  The Applicant therefore fled to Rawalpindi to make arrangement to leave the country, which he subsequently did on 25 December 2005 when he departed Pakistan for China, and from there he travelled to Hong Kong on 21 February 2006 on a forged Indian passport and subsequently overstayed, and was later arrested by the police some 6 months later for using the forged passport and for undertaking unauthorized employment, for which he was convicted and sentenced to prison for 15 months during which he was visited by a friend from Pakistan who told him that his wife had earlier given birth to their son but that both had later died in the hospital under mysterious circumstances which the Applicant suspected that they were killed by Major Mushtaq, and so upon his discharge from prison and was referred to the Immigration Department for deportation, the Applicant was afraid to return to Pakistan and therefore raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he later completed a Supplementary Claim Form (“SCF”) on 17 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.  By a Notice of Decision dated 11 May 2018 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”).

10.  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 there will be any real risk of him being harmed or killed by a Major Mushtaq or his people upon his return to Pakistan due to the absence of any past ill-treatment from Major Mushtaq, that there is no reliable evidence that Major Mushtaq’s son had in fact been killed by the Applicant or that Major Mushtaq had been looking for him for revenge or that his wife and son had in fact died or killed by Major Mushtaq other than some hearsays and the Applicant’s own bare assertions and speculations without any reliable or documentary evidence that the credibility of his claim was found to be doubtful, that his such credibility was further undermined by his failure to raise his claim upon first arrival in Hong Kong until his arrest by the police some 6 months later, that in any event if such risk were real that it arose from some private dispute between him and Major Mushtaq 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 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 Major Mushtaq to locate him.

11.  On 23 May 2018 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 12 December 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 25 January 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.  In its decision the Board found the Applicant’s claim just his bare assertions unsupported by any reliable or documentary evidence that it doubted the credibility of his claim of fear of harm from some Major Mushtaq over the alleged death of Major Mushtaq’s son or of the death of the Applicant’s wife or son which were all entirely based on some hearsays without any documentary evidence which could have been easily obtained by the Applicant or his lawyer from DLS, and that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until some 6 months later and only after his arrest by the police that his claim for non-refoulement protection was wholly rejected as incredible and unreliable that his claim for non-refoulement protection failed on all the applicable grounds.

13.  On 8 February 2019 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 or in his supporting affirmation of the same date in which he just repeated his claim as before without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. As such and in the absence of any error of law or irrationality 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 for his intended challenge or any merits in his intended application.

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 as to his credibility for the through and detailed analysis and reasoning set out in paragraphs 5 – 6 of its decision and with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or judicial 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.  Furthermore, the fact is that it has also been established by the Director in his 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, a decision also confirmed by the Board, 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 the reasons given I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss 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