MAHMOOD KHALID AND ANOTEHR v. TORTURE CLAIMS APPEAL BOARD

HCAL 662/2022

[2024] HKCFI 1661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 662 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 oral submissions by the 1st Applicant in open court and the 2nd Applicant being excused (“the Applicants”);

Leave for the Applicants to apply for judicial review be refused.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 42-year-old national of Pakistan who entered Hong Kong illegally on 2 June 2011 and was arrested by police on the following day. 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 certain local supporters of the political party Pakistan Muslim League (N) (“PML(N)”) as he supported their rival All Pakistan Muslim League (“APML”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.

2.  While being subsequently released on recognizance pending the determination of his claim, A1 met and formed a relationship with an Indonesian woman in Hong Kong, and with whom he married in 2014, and that his wife thereafter on 26 October 2015 gave birth to their daughter, but when his family and the family of his cousin Fauzia in Pakistan heard about it, they then made death threats against him and his daughter over his failure to marry Fauzia under their prearranged marriage by both of their families, and so A1 included such risk into his non-refoulement claim, and also raised a non-refoulement claim for his daughter as 2^nd Applicant (“A2”) on that basis and to be jointly assessed together with his own claim.

3.  A1 was born and raised in Village Musakhurd, Tehsil Phalia, District Mandi Bahawaldin, Punjab, Pakistan. After leaving school he assisted his father in farming in his home village, and supported APML regularly attended their local meetings and activities.

4.  One day in November 2010 A1 together with his fellow APML attended a local rally but were met with angry confrontations from the local PML(N) supporters.

5.  Several weeks after the incident A1 with some of his fellow APML supporters were abducted by the local PML(N) supporters who threatened them to leave their party to join PML((N), and when they refused, they were then beaten by those PML(N) supporters with hard objects that A1 suffered injuries to his left arm.

6.  After 7 days A1 together with some of the APML supporters managed to make their escape, whereupon A1 went into hiding in a friend’s place, but several days later those PML(N) supporters came to his friend’s place and fired gun shots from outside the house, and so A1 became fearful for his life and fled to Gilgit City, and in May 2011 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his torture claim, and after it was rejected he then sought non-refoulement protection on the same basis.

7.  While released on recognizance pending the determination of his torture claim, A1 met his Indonesian wife whom he later married in 2014 and that his wife then gave birth to A2, and after his marriage was disapproved by his family in Pakistan who together with the family of his cousin Fauzia became furious over his failing to go through their prearranged marriage with Fauzia in Pakistan and then made death threats against him and A2, for whom A1 therefore also raised a non-refoulement claim for protection on that basis, and for which he completed a Supplementary Claim Form (“SCF”) on 12 July 2018 jointly for both of them and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 22 August 2018 the Director of Immigration (“Director”) rejected the Applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”) (for A2), 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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from those local PML(N) supporters and/or A1’s family and/or the family of Fauzia upon their return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of those local PML(N) supporters to seriously harm or kill A1 or any political reason for them to specifically target A1 for harm after all these years since his departure of the country, that A1’s disputes with his family or Fauzia’s family over his failure to marry Fauzia were private personal matters between them without 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 (“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 A1 as an able-bodied adult with working experience to move with A2 to other areas of the country away from his home district in large cities such as Karachi where it would be difficult if not impossible for anyone to locate them.

10.  On 31 August 2018 the Applicants lodged their appeals to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 16 December 2019 and 12 October 2021 with a lawyer from DLS for A2 before the Board during which A1 gave evidence for himself and A2 and answered questions raised of their claims by the Adjudicator for the Board and with submissions made on behalf of A2 by her lawyer, while A2’s mother also gave evidence in support of her claim to the Board. On 24 June 2022 their appeals were dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board found material inconsistencies discrepancies and implausibility in A1’s evidence as to his political involvement in APML that it rejected the credibility of his claim of fear of harm from those PML(N) supporters as fabrications that it is not accepted that he is at any risk of harm of any kind from those PML(N) supporters due to his alleged political activity, that even accepting that he was a low-level activist with APML prior to his departure of Pakistan in 2011 that he was only involved in minimal activity he was engaged in the party and with the passage of time and the changed political landscape in Pakistan since his departure that PML(N) is no longer the ruling government that it is not accepted that A1 would still be at risk of harm in his home district due to his past political activity, while the credibility of his claim of risk of harm from his family or Fauzia’s family over his failure to honour his engagement to Fauzia and instead married A2’s mother was also severely affected by material inconsistencies discrepancies and vagueness of his evidence as well as long passage of time lapsed that it is also not accepted that even if there were anger from his family or Fauzia’s family that such risk still exists or that any such threats from them were ever intended to be acted upon in the past or in future, while for the same reasons that it is not accepted that A2 will face any risk of any harm from either family of A1 or of Fauzia, while her lawyer’s argument on her behalf that her removal to Pakistan with her father would deprive her from her mother as her main care giver and her brother would not give rise to non-refoulement rights or obligations as held by the Court of Final Appeal in the case of Comilang & Ors v Director of Immigration [2019] HKCFAR 10, or that any such harm would not amount to persecution or under any other applicable grounds, and that relevant COI indicate that various government departments and NGOs will be available to assist and support A2 to adapt to life in Pakistan without any risk of any harm from anyone upon her return with her father to Pakistan that the claims for non-refoulement protection of both A1 and A2 failed on all applicable grounds.

12.  On 25 July 2022 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 or A1’s supporting affirmation of the same date to which he just attached a copy of the decision without putting forth any proper ground for their intended challenge, nor was he able to do so at the hearing other than producing documents which he agreed to have already been earlier submitted to the Director and the Board for their consideration. As such, and in the absence of any error of law or irrationality 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 for their intended challenge.

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 Applicants’ case, the Board rejected their respective claims for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing both A1 and A2’s mother in their oral evidence and answers to questions raised of their claims as well as submissions from A2’s lawyer, 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 findings of the Board.

15.  Furthermore, the fact is that it has also been established by the Director in his decision that the risks of harms in the Applicants’ claims even if real are localized ones and that it is not unreasonable or unsafe for them to relocate to other part of Pakistan, a decision also agreed and confirmed by the Board, there is simply no justification to afford either of them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.  I am of course mindful of the fact that A2 is still a minor at her present age of 8 years old and was without legal representation in her present leave application before the Court as required by Order 80 rule 2 of the Rules of the High Court, Cap 4A, and hence it would be necessary to separately consider and examine whether her claim had been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness required for proceedings of this nature, and to see whether there are matters that may support her potential minor-specific non-refoulement bases but which might not be properly advanced to the Court in her leave application due to lack of legal representation or of any error of law or procedural unfairness which might have been committed by the Board in her appeal against the Director’s decision, an approach held to be necessary as laid down by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971, in that claims of minor children even if based on the same set of primary facts are separate from their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of any adult may do so in the case of a child.

17.  In the present case, A2 was however represented by her own lawyer from DLS in her appeal before the Board during which her parents did also give evidence and make representations of her claim separately for her based on her own personal circumstances specific to her as a child born outside Pakistan to a Pakistani father and an Indonesian mother who has been her primary care giver and that she has been receiving education in Hong Kong, of which the Board did properly and separately consider in its decision as noted above, and while A2 was without legal representation in these proceedings after her application for Legal Aid had somehow been refused, I am unable to see any potential minor-specific non-refoulement basis which her lawyer might have failed to raise on her behalf to the Board during her appeal hearing or any error of law in the Board’s decision upon close scrutiny. In the circumstances, I shall treat the absence of legal representation for A2 in these proceedings as a mere irregularity, as it would not serve any purpose for her to be so represented given the lack of merits in her intended judicial review (see Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, as discussed in [57] of Fabio Arlyn Timogan.

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 claim of either A1 or A2.

19.  For all these reasons I am not satisfied that there is any prospect of success in the intended application of either A1 or A2 for judicial review, and accordingly I refuse to grant leave and dismiss their 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