AKIF MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 595/2018

[2020] HKCFI 2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 595 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 39-year-old national of Pakistan who entered Hong Kong illegally on 15 April 2009 and was arrested by police on the same 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 his cousins and/or other supporters of rival political party over their political differences, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his non-refoulement claim.

2.  The Applicant was born and raised in Village Haroon, Tshsil Attock City, Punjab, Pakistan.  After living school he followed his family’s tradition to become a supporter of the political party Pakistan Peoples Party (“PPP”), while his paternal cousins who lived in the same village supported rival party Pakistan Muslim League (Q) (“PML(Q)”) and had thus often come into conflicts with him and his family over their political differences.

3.  In 2003 there was a local election of their village union council during which his cousins asked the Applicant and his family to vote for the PML(Q) candidate, but the Applicant and his family refused and instead they voted for their PPP candidate, and although subsequently the PML(Q) candidate won the election and became the council chairman, the Applicant’s cousins continued to bear grudges against the Applicant and his family, and had threatened and harassed the Applicant and his family, including raising issues amongst the villagers over his family’s title in their family farmland, and on one occasion they beat up his younger brother, and on another occasion they hit him on the head with a hockey stick that required medical treatment in the local hospital.

4.  One day in 2006 the Applicant’s younger brother and a friend were on their way home in the village when they were struck from behind by a vehicle driven by one of the Applicant’s cousins, and both died on the scene, but the cousin told the police that it was a truck which hit them and that he just witnessed the accident which was accepted by the police and no action was taken against the cousin which terribly upset the Applicant and his family. 

5.  Several months after the death of his brother, the Applicant had on two occasions run into his cousins who threatened that the same fate would happen to him which terrified the Applicant, and after he told his parents about those threats, he was advised that he should leave Pakistan for his own safety, and so in April 2009 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his torture claim, and after it was rejected by the Immigration Department, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form on 28 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  Whilst released on recognizance pending determination of his claim, the Applicant was arrested by police on 6 June 2015 for possession of illegal drug and was given a fine, and on 21 September 2016 he was again arrested, and this time for possession of a forged identity card and undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 15 months.      

7.  By a Notice of Decision dated 7 March 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk but including 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”).

8.  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 his cousins and/or supporters of PML(Q) upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention on the part of his cousins or any PML(Q) supporters to harm or kill him, that in any event it was a private personal dispute between them 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 show that reasonable internal relocation alternatives are available in Pakistan with a large population of 201 million people spread across a vast territory of more than 770,000 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 Rawalpindi where it would be difficult if not impossible for his cousins or any PML(Q) supporters to locate him.

9.  On 17 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the decision of the Director, and for which he attended two oral hearings on 24 January and 21 February of 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 6 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found serious contradictions and inconsistencies in the Applicant’s evidence given at his appeal hearing of his political involvement in Pakistan which seriously undermined his claim of fear of harm from his cousins or supporters of PML(Q), and did not accept that he genuinely fears repercussions from them or any other political party whether because of his or his family’s involvement in politics or for any other reason upon his return to Pakistan, and concluded that he failed to establish any substantial grounds in support of any claim that he will face a real risk of ill-treatment as claimed if returned to Pakistan that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.    

11.  On 10 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that the decision was unreasonable in failing to consider all the matters raised in his claim or give adequate reason but without providing any particulars or elaboration how it was so, nor did he request any oral hearing for his application.  As such and in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicant with adequate particulars or elaborations, I do not find any reasonably arguable basis 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 34 – 48 of its decision with the benefit of hearing him in 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 that it has been established by both the Director in his 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, a decision also confirmed by the Board, 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