NAEEM MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 811/2018

[2020] HKCFI 2599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 811 of 2018

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

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 11 November 2013 and was arrested by police on 2 December 2013. 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 the local supporters of rival political party Pakistan Muslim League (N) (“PML(N)”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Shahdara, Lahore, Pakistan. After leaving school he followed his family’s tradition to become a supporter of the political party Pakistan Peoples Party (“PPP”) and regularly attended their local meetings and activities but held no official position in the party.

3.  One day in March 2013 during the general election when the Applicant and his fellow PPP supporters were busy engaging in their election campaign, they came into conflicts with some local PML(N) supporters which turned into a violent clash between the two groups but the Applicant managed to escape unharmed.

4.  However, about a week later the Applicant received news that two of his relatives had been murdered, of which he suspected that they were killed by those local PML(N) supporters, and when he heard that they were also looking for him everywhere, he therefore fled to Karachi, and on 1 November 2013 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 non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 1 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.             

5.  By a Notice of Decision dated 6 December 2016 the Director of Immigration (“the 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”).

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 he would be in danger of being harmed by those local PML(N) supporters upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence or reason that he had been specifically targeted by the PML(N) supporters, that in any event after all these years it is doubtful that they would still have any adverse interest in him who was merely a PPP supporter with no official position in the party, that 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 adult to move to other part of Pakistan away from his home district in large cities such as Karachi or Islamabad where it would be difficult if not impossible for those local PML(N) supporters to locate him.

7.  On 15 December 2016 the Applicant then 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 9 April 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 26 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found the Applicant’s evidence of his claim vague and unsubstantiated which was further undermined by his lack of knowledge about PPP that it attached no credence to his claim for asylum, and that in any event that he can avoid any such harm in his local area by relocating safely and reasonably to other area away from his home district that his fear is not well founded and that his claim for non-refoulement protection failed on all applicable grounds. 

9.  On 9 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1) That the Director and the Adjudicator reached the wrong decisions in assessing his non-refoulement claim which are not reasonable or fair in failing to recognize that the Applicant may face the danger of extra-judicial killing;

(2) That the Adjudicator failed to give the Applicant sufficient time and chance to arrange relevant evidence for his non-refoulement claim and appeal; and

(3) That the Applicant is a genuine non-refoulement claimant who faced dangerous problems and torture in his home country which he had no choice but to escape for non-refoulement protection.

10.  These are however just some broad and vague assertions of the Applicant containing a few key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Director or the Adjudicator reached their decisions wrong or in what way were they unreasonable or unfair, or what relevancy was extra-judicial killing to his case, or how did the Adjudicator fail to give him sufficient time or opportunity to provide or present his evidence in support of his case. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such I do not find any of them reasonably arguable for his intended challenge.

11.  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.

12.  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 16 – 21 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.  

13.  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.                

14.  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.

15.  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