AFZAAL MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITON OFFICE

HCAL 290/2019

[2021] HKCFI 3267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 290 of 2019

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the Applicant’s claim for non-refoulement protection.

2.  The Applicant, born in 1991, is a national of Pakistan. He arrived in Hong Kong in February 2010 on a visa to work as a foreign domestic helper but overstayed after his contract of employment ended in 2012. As an overstayer he remained undetected for 5 years and 3 months until surrendering himself to the Director on 25 May 2017. On 4 October 2017, he lodged a claim for non-refoulement protection by written representation on all the available grounds including risk of torture, BOR 3 risk, BOR 2 risk and persecution risk.

3.  It is the Applicant’s case that he feared being harmed or killed by a Shia Muslim named Riaz Qadir (“RQ”) who was an active member of the Pakistan People’s Party (“PPP”).

The Applicant’s case

4.  The Applicant’s home is in Village Saidpur in Punjab and he was born into a Sunni Muslim family but most of the people in the village were Shia Muslim. The Applicant, being an active Sunni Muslim would preach and door knock at people’s home but would leave if the occupiers were Shia in order to avoid hostility.

5.  The first incident happened in around 2007 during general election period in Pakistan. The Applicant and his group of Sunni Muslims were making a speech asking people to join but some Shia Muslims came to disrupt them. RQ was among that group of Shia Muslim and produced a knife telling the Applicant that the Applicant was being watched. The Applicant fled without sustaining any harm.

6.  The second incident was also during the general election period in 2007 when the Applicant was claimed to have been beaten up by men using leather belts resulting in the Applicant suffering open wounds for which he had to be medically treated. When he tried to report this to the Shakar Ghar Police station, the officer there refused to register the report.

7.  After the second incident, the Applicant moved to Lahore to stay with a friend but that RQ managed to locate the Applicant in Lahore and got some men to bring the Applicant back to his home village. There they tried to burn the Applicant who managed to escape with only singeing of his hair and a burn to his right foot (the third incident). He was treated at a private hospital. Again he went to the Shakar Ghar Police station to make a report of this third incident and this time the officer registerd a first incident report for him but the police did not take any action against RQ.

8.  The Applicant further said that because PPP won the general election in 2008 and that he was afraid of RQ, he left Pakistan for work in Hong Kong and explained that the 2 years delay for him coming to Hong Kong was because he could not work during those 2 years due to the burn injury to his foot.

The Director’s decision

9.  The Director assessed the Applicant’s non-refoulement claim on all applicable grounds including torture risk, BOR 2 risk, BOR 3 risk and persecution risk.

10.  The Director found that the dispute between the Applicant and RQ to be a personal dispute more than anything else, and that there was nothing to show that the Pakistani government or any government official was in any way involved.

11.  The Director further found that the harm caused to the Applicant by RQ and his followers were not as severe as the Applicant had made it out to be.

12.  Moreover, the Director based on the Country of Origin Information (CIQ) assessed that state protection and, if need be, internal relocation was available to the Applicant.

13.  On that basis, the Director found that the Applicant had not sufficiently made out his claim for non-refoulement protection under any and all of the available grounds.

The Board’s decision

14.  The Applicant attended a hearing before the Board on 4 December 2018.  At that hearing before the Board, the Applicant was unrepresented, appearing in person.

15.  At the hearing before the Board the Applicant produced a CD containing a video with heading “Breaking News” read by a newsreader.  The contents (when translated) was that a guy lived in Hong Kong for 8 years.  After his return to Pakistan he was shot and his body found in a river.  He had gone missing for 8 hours when his body was found. He was shot with 4 bullets according to the police and his body sent for post-mortem.

16.  There was however nothing to link the contents of that video clip to the Applicant’s case in any way.

17.  By a decision dated 17 January 2019, the Board rejected the appeal / petition of the Applicant and confirmed the decision of the Director.  The Board’s decision covered all the applicable grounds including torture risk under Part VIIC of the Immigration Ordinance, BOR 2 risk under Article 2 of the Hong Kong Bill of Rights Ordinance, BOR 3 risk under Article 3 of the Hong Kong Bill of Rights Ordinance and persecution risk under Article 33 of the 1951 Convention relating to the Status of Refugees.

18.  The Board gave its reasons for rejecting the Applicant’s appeal at paras. [5] to [34] of its decision.  In short, the Board found no evidence that the Applicant had suffered severe injury or serious harm which would place him at substantial future risk of CIDTP.  The Board also found no substantial risk to the Applicant’s life.  Furthermore, the Board did not accept that the RQ of over 11 years ago would be interested in locating the Applicant all over Pakistan and also that there was no evidence of any official or state involvement in the case.

19.  The Board, in reliance on the Country of Origin Information (COI), found that both state protection and internal relocation to be readily available to the Applicant.

20.  Quite independently of the above findings, the Board further found the Applicant to be dishonest and unreliable as to why he left Pakistan and why he came to Hong Kong for the reasons stated in the Board’s decision at paras. [31] to [34].

Discussion

21.  The relevant principles on appeals in non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

22.  When the Applicant pursued his appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore while the court examines the decision of the Director and that of the Board, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

23.  In the present case, the Board did not take issue with the personal and family background of the Applicant accepting them as true.  The Board however disagreed with the Applicant on the assessment of the risk to the Applicant as perceived by the Applicant, quite apart from its assessment as to the credibility of the Applicant.

24.  The Board further found that state protection and internal relocation to be available to the Applicant based on the COI material.

25.  It has been said time and again that findings of primary facts, risk of harm, availability of state protection as well as internal relocation are primarily the province of the Board and the Director and is not for this court to usurp those functions of the Board unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

26.  The present complaint raised by the Applicant in his Form 86 contains nothing to indicate any error of law, procedural unfairness or irrationality in the decision of the Board.

27.  Having gone through the decision of the Board carefully and thoroughly, it can be seen that the Board has considered all four available grounds (on which this non-refoulement claim is brought) separately and distinctly, dealing with the merits of each limb individually.

28.  The decision reached by the Board cannot be said to be in any way unreasonable.  Nor can the court see any error of law, procedural unfairness or irrationality in the decision of the Board and the reasons given.  There is no reasonably arguable basis to challenge the findings of the Board.

29.  For the reasons given, there are no prospects of success in the Applicant’s intended application.  Accordingly, the court refused to grant leave for judicial review.

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