FAHEEM MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 443/2018

[2020] HKCFI 1483

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 443 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 30-year-old national of Pakistan who entered Hong Kong illegally on 18 March 2016 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by some local Pathan people who were said to have killed his elder brother over certain dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Bhoti pind, Tehsil Taxila, District Rawalpindi, Punjab, Pakistan.  After leaving school he assisted in running his family’s sanitary business and remained residing in his family’s home with his widowed mother and siblings in his home village.

3.  One day in October 2015 his elder brother was shot and later died from the gunshot wounds in the village which according to some of the villagers that he was killed by some Pathan people in the neighbouring village over certain dispute, but his family did not make any report to the police as they suspected that those Pathan people were Taliban and were afraid that they may come after them if the police was involved.

4.  One day in February 2016 when the Applicant ran into some Pathan people in the village, one of them recognized him and threatened that after having killed his elder brother, they would kill him next, but before they could do anything the Applicant ran away from the scene and later fled to Abbottabad in Khyber Pakhtunkhwa, and as he was still fearful for his life, he therefore departed Pakistan on 9 March 2016 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 12 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

5.  By a Notice of Decision dated 28 July 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

6.  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 the risk of harm from those local Pathan people upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there is no reliable or objective evidence that his brother was in fact killed by them or that they were Taliban or that they had any motive or intention to harm or kill the Applicant, that in any event in the absence of 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”) show 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 young adult with working experience to move to other part of Pakistan away from his home district in large cities such as Karachi or Lahore where it would be difficult if not impossible for those local Pathan people to locate him.

7.  By a Notice of Further Decision dated 3 July 2017 the Director again rejected the Applicant’s claim upon receiving and considering the same facts as before from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 9 August 2016, and for which he attended an oral hearing on 21 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 9 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board did not find the Applicant’s claim of fear of harm from those Pathan people to be credible as there was no reliable or objective evidence that they had any motive or intention to target him even if they were indeed the murderers of his elder brother, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant as well as reasonable internal relocation within Pakistan for him to move safely to other area away from his home district to re-establish his life without any risk of being located by those Pathan people that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 19 March 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) irrationality in failing to consider the concept of state acquiescence;

(2) procedural impropriety in making insufficient inquiry;

(3) failure to provide adequate reasons as to decision made;

(4) procedural impropriety/unfairness in failing to investigate into the Country of Origin Information of Pakistan;

(5) irrationality in failing to place weight on relevant information and/or selectively placing weight on irrelevant information;

(6) irrationality in failing to consider a consistent system of human rights violations;

(7) irrationality in placing weight on irrelevant matters or inaccurate or incorrect facts;

(8) procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations;

(9) procedural impropriety in applying the incorrect standard of proof with no reasonable basis for rejecting the credibility of his claim, in failing to consider the extended state acquiescence and failing to fully consider the COI reports in assessing risk to the Applicant;

(10) irregularity of the decision-maker being a different person from the interviewing officer; and

(11) failing to provide proper basis for consideration of internal relocation. 

11.  These 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 to how they applied to his case or how the Board or the adjudicator had erred in the decision, or what relevancy was the concept of state acquiescence to his claim, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way did the adjudicator fail to apply the correct standard of proof in assessing the credibility of his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them 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 adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 53 – 90 of its decision with the benefit of hearing 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 the Board.

14.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective 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, 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