SHAFIQ MUHAMMAD v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE APPOINTED TO DETERMINE THE APPLICANT’S PETITION AND ANOTHER

HCAL 854/2018

[2019] HKCFI 2508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 854 of 2018

 Application for Leave to Apply for Judicial Review

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

Following:

1.   extension of time for the application for leave to apply for Judicial Review of the decision of the Torture Claims Appeal Board dated 9 February 2018 granted; and

2.   leave to apply for judicial review refused.

Observations for the Applicant:

1. The Applicant is a 59-year-old national of Pakistan who entered Hong Kong illegally on 19 May 2009 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by his former business partners over some monetary dispute and/or by the police as a result of a complaint made by those partners in respect of the dispute.  After his torture claim was rejected, he then lodged a non-refoulement claim for protection on the same basis, and was then released on recognizance pending the determination of the claim.

2. The Applicant was born and raised in Lahore, Pakistan where he worked as a tailor and selling clothes.  In 1991 he moved to Muzaffarabad, Azad Kashmir to live with his brothers and joined their photographic business as a partner. Their business had a branch in Balakot ran by the Ghulum brothers who were members of the then ruling political party Pakistan Muslim League–Nawaz (“PML‑N”).

3.  In 2002 the Applicant and his brothers took out a bank loan for the purchase of a machine for developing and printing photographs for their business, with the loan repayable by monthly instalments.

4.  However, in 2006 after an earthquake in Muzaffarabad had damaged and destroyed all their business machines and equipment, the Applicant and his brothers had to sell their shop and laboratory to repay the bank for their loan, but after they had closed down their business, the Ghulum brothers started to demand for compensations for their loss in their investment and their share of the business profit or else they would make a report to the police against the Applicant and his brothers for cheating them of their money.

5.  One day in September 2008 the Ghulum brothers kidnapped one of the Applicant’s brothers for compensation, but subsequently released him unharmed after the Applicant had threatened to call the police.

6.  Eventually the Applicant and his brothers sold their properties inherited from their parents to pay off the Ghulum brothers, but as it was still not enough to cover the total amount, the Ghulum brothers continued to make threats against the Applicant for the remaining balance, and soon the police started to come looking for the Applicant in his home in Lahore, and as the Applicant suspected that they were acting on the Ghulum brothers’ complaint, he would stay away from his home to avoid the police or the Ghulum brothers.

7.  Eventually the Applicant went to Islamabad to take shelter at his friend’s home for several months without incidents, but as he still feared of the threats from the Ghulum brothers and the police, he decided to leave Pakistan in May 2009 when he departed forChina, and from there he later sneaked into Hong Kong and raised his torture claim, and after it was rejected by the Immigration Department in 2014, he then lodged a non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 17 May 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 8 June 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture claim including 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”).

9.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Ghulum brothers to the Applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that his problem with them arose from some private monetary disputes without the involvement of the party PML‑N or government officials that state or police protection would be available to the Applicant if resorted to, that there is no reliable evidence that he was wanted by the police or authorities in Pakistan and that he was able to leave the country without any problem, 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 work experience to move to other part of Pakistan away from his home district in large cities such as Faisalabad, Islamabad or Karachi where it would be difficult if not impossible for his former partners to locate him.

10.  On 22 June 2017 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 8 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 9 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found numerous and significant discrepancies in the Applicant’s evidence in particular those regarding his business and the problems he claimed to have with the Ghulum brothers that it did not accept that he is a witness of truth or that he had a photography business with his brothers or any monetary dispute with the Ghulum brothers, and concluded that there is not a real risk that he would face any of the proscribed forms of harm should he return to Pakistan.

12.  On 16 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

 (1) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which had led to an unfair outcome of rejecting his non-refoulement claim;

 (2) that the Director failed to take into account that the Applicant was tortured at the behest of and in full collusion of the police and the state enforcement agencies that the state would be rendered liable to the applicant for their failure to provide reasonable protection for its citizens under the duty of due diligence before reaching his decision;

 (3) that the Director failed to consider or give sufficient weight to the relevant COI which support the Applicant’s claim that the police in Pakistan would not be able to protect its citizens;

 (4) that the Director had shown an unfair attitude in his decision by referring only to those COI which suited his pre-conceived conclusion;

 (5) that the Director failed to apply high standards of fairness by not taking into consideration the corruption and incompetency of the administration in Pakistan which is a serious problem; and

 (6) that the adjudicator failed to make sufficient enquiry before finalizing the determination that the Applicant had failed to produce credible evidence in support of his claim and in failing to give sufficient chance for the Applicant to arrange relevant evidence for his non-refoulement claim as well as his appeal.  

13.  The Applicant was however late with his Form, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

14.  As the last day of the three-month period for the Applicant to file his Form 86 fell on 9 May 2018, he was therefore late by about one week, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

15.  In the Applicant’s case, a delay of seven days cannot be said to be significant, for which he explained at the hearing that as he was then being detained at the Castle Peak Bay Immigration Centre (“CIC”) and that he had to find someone outside to assist him with his application.  Given his then situation and that he was unrepresented, I am prepared to accept his explanation for the delay and to extend time for his leave application, and shall next turn to consider his proposed grounds to see if there is any merit or prospect of success in his intended challenge.

16.  They are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as tohow they applied to his case or how the Director or the adjudicator had erred in their decisions,or why was the concept of state acquiescence relevant to his claim, or in what way did the they fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or how did the adjudicator fail to make sufficient enquiry or investigation of the Applicant’s claim before reaching his decision.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and clearly the complaint that he had been tortured in Pakistan is just factually incorrect even on his own case. As such I do not find any basis or merits in any of them or that any of them is reasonably arguable for his intended challenge.

17.  As has been repeatedly emphasized by the Court of Appeal, 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.

18.  In the Applicant’s case, the Board rejected his claim essentially on the adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 43 – 55 of its decision with the benefit of hearing him in oral evidence and in his answers to questions raised of his claim during the oral hearing of his appeal, and in the absence of any error of law or procedure in the appeal process or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

19.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonableor 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. 

20.  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.

21.  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 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