ISHAQ MUHAMMAD ALIAS MOHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 1204/2018

[2021] HKCFI 1168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1204 of 2018

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 70-year-old national of Pakistan who entered Hong Kong illegally on 7 February 2008 and was arrested by police on 9 July 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by a fellow villager who was a Shia Muslim over some personal dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Sunni Muslim in Karachi, Pakistan, and later moved to Village Damaan, Tehsil Hazro, District Attock where he ran a grocery store to support his family of 5 children who are now all adults.

3.  One day in late 2007 while working in his grocery store, the Applicant had a quarrel with a Shia villager for staring at each other. Two weeks later the same villager came into his store and quarreled with him again over the previous staring incident.

4.  One day in early 2008 the same villager came to the Applicant’s store with several Shia men and punched and kicked him all over his body, and threatened to kill him next time if he dared to stare at him again.       

5.  After the assault the Applicant became fearful for his life, and so on 16 January 2008 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised a torture claim later taken as a non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 October 2016 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 15 November 2016 the Director of Immigration (“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 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”).

7.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and no substantial grounds for believing that he would be in danger of being harmed or killed by his neighbor or his neighbor’s fellow Shia Muslim upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that the majority of people in his home village were Sunni Muslims like him and that there is no evidence of any previous threats by any Shia Muslims against him other than his said neighbor over the staring incident, that their dispute was a private personal matter 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”) shows that reasonable internal relocation alternatives are available in Pakistan with a large population of 199 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 parts of Pakistan away from his home district in large cities such as Islamabad where it would be difficult if not impossible for his neighbor to locate him.

8.  On 24 November 2016 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 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 15 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted the Applicant’s claim of dispute with a Shia villager but found exaggerations in his assertion of threats made against him arising from their dispute, that it was just a minor personal dispute between the two of them who had known each other for years in the same village without any religious or political motive or reason behind their dispute, and that in the absence of any evidence of any official involvement that state/police protection would be available to the Applicant upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.   

10.  On 27 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) that the Board failed to consider all the matters raised in the Applicant’s his claim; and

(2) that the Board failed to give accurate reasons for its decision.

11.  These are however all just broad and vague assertions of the Applicant 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 Board fail to consider all the matters raised in his claim or to give reasons for its decision which the Board in fact did give ample reasons as set out in paragraphs 18 – 20 of its decision. 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 either grounds of the Applicant reasonably arguable for his intended challenge.

12.  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.

13.  In the Applicant’s case, the Board rejected his claim essentially on its finding that there was no evidence of any religious or political reason behind his personal dispute with his fellow villager and that state/police protection would be available to the Applicant to negate any risk of threats against him for the thorough and detailed analysis and reasoning set out in the decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 finding of the Board.  

14.  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 for which state/police protection would be available that it is not unreasonable or unsafe for him to relocate to other parts of Pakistan, a decision also confirmed by eth 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.     

15.  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.

16.  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