MUHAMMAD USMAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 456/2018

[2020] HKCFI 1674

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 456 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 31-year-old national of Pakistan who entered Hong Kong illegally on 12 May 2010 and was arrested by police on 4 September 2010.  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 creditor for failing to repay his loan, and when his torture claim was rejected, he absconded from his recognizance until a removal order was issued against him when he then sought non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Taranwala Bazar, Khiali Bypass, Gujranwala, Punjab, Pakistan.  After leaving school he worked in a company trading seeds with farmers in his home district.

3.  In 2007 he formed his own shop for seeds trading business by borrowing a loan of 1.5 million rupees from a local loan shark repayable by monthly instalments of 50,000 rupees.

4.  However, due to poor business in early 2009 the Applicant started to have difficulties making the loan instalment payments on time, and by August 2009 he was unable to make any further payments at all despite warnings from the loan shark of serious consequences for his default, and in September 2009 the loan shark started sending his men to the Applicant’s shop to threaten him with violence, when they also damaged and threw away his stocks and goods.  After those men had left, the Applicant reported the matter to the police but he was told that it was just a personal monetary dispute and that he should settle it privately with his creditor.

5.  One day in February 2010 the loan shark again came to the Applicant’s shop with his men armed with guns and demanded payment from him, and when he was unable to do so, they beat him up by punching and kicking him all over the body and threw all his things out of the shop, and before they left, they fired their guns into the air and threatened him that next time they would kill him if he still failed to repay his loan.

6.  After receiving medical treatments from the local hospital, the Applicant closed down his shop and hid in his home, but one day on 6 March 2010 the loan shark and his men came to his home and hit him with the handle of their pistols until his neighbours heard his screams and came to his rescue, and before they left, he was warned that next time they would kill him.

7.  Fearing for his life, the Applicant therefore fled to Jamia Muhammadia, Gujranwala to take shelter in a friend’s place, while his family also moved away to avoid the loan shark, but when he heard that the loan shark and his men were looking for him everywhere, he decided that it was no longer safe to remain in Pakistan, and so on 5 May 2010 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his torture claim, and after it was rejected he absconded from his recognizance until 2014 when he sought non-refoulement protection, for which he completed a Supplementary Claim Form on 24 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 16 August 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds except torture risk but 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”).

9.  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 he will face any personal real and foreseeable risk of harm upon his return to Pakistan due to serious doubt on the credibility of his claim of harm from the loan shark, that in any event it was a private monetary dispute between them 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 show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 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 young adult with working experience to move to other part of Pakistan away from his home district in large cities such as Islamabad or Lahore where it would be difficult if not impossible for the loan shark or his men to locate him.

10.  On 25 August 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 6 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 12 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found inconsistencies, discrepancies and implausibility in the Applicant’s claim as to his claims to have borrowed the loan from the loan shark for his business and the subsequent threats from the loan shark over his default with his loan repayment that it formed an adverse assessment of his overall credibility that he was not considered as a credible witness that his claim for non-refoulement protection was rejected on all the applicable grounds.

12.  On 20 March 2018 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, and in his supporting affirmation of the same date he merely repeated his claim that he would be killed by his creditor if refouled to Pakistan without putting forward any proper or valid ground for his intended challenge.  Nor did he request any oral hearing for his application.  As such I do not find any reasonably arguable basis for his intended application.

13.  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.

14.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 103 – 115 of its decision 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 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 eth Board.

15.  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 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.     

16.  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.

17.  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