MUHAMMAD AZAM AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1474/2018

[2020] HKCFI 181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1474 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 1^st Applicant (“A1”) is a 54-year-old national of Pakistan who last arrived in Hong Kong on 22 March 2003 with permission to remain as a visitor up to 5 April 2003 when he did not depart and instead overstayed and was arrested by police on 26 October 2007.  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 in revenge by the family of the victim killed by him in an accident, and after the torture claim was rejected, he then sought non-refoulement protection on the same basis, and when his son the 2^nd Applicant (“A2”) was subsequently born in Hong Kong on 10 May 2016, he also raised the same claim for him and to be assessed with his jointly. A1 has since been released on recognizance pending the determination of their claim.

2.  A1 was born and raised in Gujranwala, Punjab, Pakistan. After leaving school he ran a shop selling birds, birds’ food and cages in his home district, got married and raised a family.

3.  On day in January 1990 A1 was visiting some friends in a shop where they were playing around with a gun, during which A1 accidentally shot one of his friends Abdul Qadeer (“AQ”) who later died in the hospital.

4.  As a result, A1 was arrested by the police and was later charged for the murder of AQ, but eventually his family was able to settle the dispute by paying compensation to AQ’s family and A1 was then acquitted by the court in 1992.

5.  After the shooting incident A1 closed down his shop, and upon his release he went to work for his father in his garment business and put the shooting incident behind.

6.  However, one day in 2000 while A1 was working in his father’s shop, AQ’s younger brother, who was a child when AQ died but now a grown-up, came in with two of his cousins and started to scold A1 for killing his elder brother, and proceeded to demand for revenge by hitting him with wooden sticks until some neighbours intervened, and before they left, AQ’s brother and cousins swore that they would seek revenge for AQ by killing A1.

7.  After receiving medical treatments for his injuries, A1 however did not report the matter to the police, as he knew AQ’s brother and cousins had political connections being members of the political party Pakistan Muslim League (N) (“PML(N)”), and that the police might be under their influence, and so A1 instead fled to Lahore to take shelter at his relative’s home where he stayed without further incidents.

8.  In August 2001 A1 married his wife and raised a family with a child in Lahore, but when he heard that AQ’s brother and cousins were still looking for him everywhere and had discovered his whereabouts in Lahore, A1 felt that it was no longer safe to remain in Pakistan, and so in December 2002 he departed for China, and from there he made several trips to Hong Kong as a visitor, and on his last trip on 22 March 2003 he overstayed in Hong Kong, and upon his subsequent arrest by the police in October 2007, he raised his torture claim, and after it was rejected by the Immigration Department, he then raised a claim for non-refoulement protection, for which he completed a Supplementary Claim Form on 2 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.  While being released on recognizance pending determination of his claim, A1’s wife and their elder son arrived in Hong Kong in February 2015 to live with him, and that they also raised their own non-refoulement claim which were assessed separately from A1’s claim, but after his wife gave birth to A2 in May 2016, A1 raised a non-refoulement claim for him on the same basis which was jointly assessed with his own claim.        

10.  By a Notice of Decision dated 23 February 2017 the Director of Immigration (“the Director”) rejected the Applicants’ claim on all the remaining applicable grounds other than his torture claim but including risk of their 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”).

11.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and found no substantial grounds for believing that there will be any real and substantial risk of them being harmed or killed by AQ’s brother or cousins upon their return to Pakistan due to the absence or low intensity and frequency of past ill‑treatment from them, that the dispute between them was a private personal matter that after all these years it is doubtful that AQ’s brother and cousins would still have any adverse interest in the Applicants, that in the absence of any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information 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 A1 as an able-bodied adult with working experience to move with A2 to other part of Pakistan away from his home district in large cities such as Lahore where A1 had stayed before for more than 2 years without incidents and where it would be difficult if not impossible for AQ’s brother or cousins to locate them.

12.  The Applicants then lodged an appeal the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which A1 attended an oral hearing on 4 May 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 5 July 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

13.  In its decision the Board accepted that A1 may have accidentally killed AQ in an accident and that he was subsequently acquitted by the court after compensation had been accepted by AQ’s family, but found such inconsistencies and contradictions in his evidence of being subsequently threatened by AQ’s brother and cousins some 10 years later which led him to flee from Pakistan that he was not considered as a reliable witness of truth, that his credibility was further undermined by his failure to raise his claim upon his arrival in Hong Kong until more than 4 years later and only after he was arrested by police, and that in any event with reasonable internal relocation available within Pakistan that it would be safe for him to move with A2 to other part of Pakistan away from his home district without any risk of being located by AQ’s brother or cousins that the Applicants’ claim for non-refoulement protection failed on all applicable grounds.

14.  On 26 July 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date he merely repeated his claim that his life would be in danger if returned to his home country, and that he was not satisfied with the Board’s decision for dismissing their appeal without conducting proper inquiries from reliable sources or fully studying their case and the consequences of them being forced to return to their home country, but without providing any details or particulars as to how the Board has so erred in its decision.  As such and in the absence of any error of law or procedural unfairness in the Board’s decision being clearly identified by the Applicants with sufficient particularity, I do not find this complaint reasonably arguable for their intended application.

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.  In the Applicants’ case, the Board rejected their claim essentially on its adverse finding on A1’s credibility for the thorough and detailed analysis and reasoning set out in paragraphs 34 – 44 of its decision and with the benefit of hearing his oral evidence and answers to questions raised of his claim during the appeal hearing, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.

17.  Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Pakistan, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.          

18.  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 Applicants’ claim.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their 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