ZUBAIR MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 63/2022

[2022] HKCFI 877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 63 of 2022

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 the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of Pakistan who entered Hong Kong illegally on 13 February 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 three local villagers over some disputes arising from a drinking incident in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Sagri, Tehsil Dina, District Jhelum, Punjab, Pakistan.  After leaving school he worked as a self-employed tailor, got married and raised a family with 2 children in his home village.

3.  One day in November 2010 three local villagers got drunk and caused a disturbance inside the Applicant’s tailor shop during which they also assaulted him and vandalized his shop, for which the Applicant subsequently made a report to the police to have those men arrested, and also commenced civil proceedings against them for damages.

4.  After they were released by the police on bail pending court hearing, the 3 local villagers came to the Applicant’s shop to ask him to drop the police charges and his court case against them, and when the Applicant refused, they then made threats against him and caused disturbances in his shop and interrupted his business.

5.  As a result of the persistent threats from those men, the Applicant in 2013 moved his family to Lahore, and on 31 January 2016 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 24 September 2018 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those 3 local villagers upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of those men to seriously harm the Applicant other than to put pressure on him not to press charges against them, that in any event his problem with them was a private dispute 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”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 204 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 part of Pakistan away from his home district in large cities such as Lahore where he had stayed before without incidents and where it would be difficult if not impossible for those 3 local villagers to locate him.

8.  On 2 October 2018 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 26 August 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 29 October 2021 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 threats from those 3 local villagers which arose from a drunk incident but found no evidence of any real intention of those men to seriously harm or kill him over what was clearly a private dispute between them without any official involvement that state/police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located by those local villagers that his claim for non-refoulement protection failed on all applicable grounds.    

10.  On 17 January 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)   that the Director and the Adjudicator reached their decisions wrongly in assessing the Applicant’s non-refoulement claim as being unreasonable and unfair in failing to recognize that the right to life must be protected by criminal law and from extra-judicial killings which the Applicant may face if deported back to his home country;

(2)   that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3)   that the Director failed to appreciate or give proper weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(4)   that the Director failed to take into account of the fact that the Applicant was tortured at the behest of the state law enforcement agencies as well as politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5)   that the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed to consider or give enough weight to such evidence and ruled otherwise against the Applicant’s case which is a clear case of unfair attitude shown by the Director which in itself is enough to render the decision void; and

(6)   that the Director failed to attain high standards of fairness required by the Wednesbury test in failing to recognize that the corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem which various human rights organizations have compiled reports on the matter which stated testament to the Applicant’s assertions that the decision should be considered unreasonable in the scope of public law.  

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 Director or the Adjudicator had erred in their decisions, 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 how did the Adjudicator fail to give the Applicant sufficient time or opportunity to present his relevant evidence for his claim or appeal, or how did the Board fail to apply high standards of fairness in assessing his claim, or what relevancy would extra-judicial killings or torture be to the Applicant’s claim which was even on his own case a private local dispute arising from a drinking incident without any official involvement.

12.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant or with any relevancy to his case, nor did he attend the hearing of his application without any explanation. As such I do not find any of them reasonably arguable for his intended challenge, 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 see any basis for his intended application either.

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 fact is that it has been established by both the Director and the Board in their respective decisions 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