AKRAM MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 3653/2019

[2021] HKCFI 3390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3653 of 2019

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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of Pakistan who entered Hong Kong illegally on 6 March 2016 and surrendered to the Immigration Department on 15 March 2016 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his friend over some religious disputes.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Thatha Fateh Chand, Nankana Sahib, Pakistan.  After leaving school he worked as a farmer, and followed his parents’ tradition to support the religious groupknown as Ahle-Hadees, as did his close friend Naveed.

3.  In 2008 the Applicant under the influence of his former school teacher changed his support to another religious group as Ahle-Sunnat, which upset his friend Naveed that their relationship had since deteriorated significantly.

4.  One day in March 2015 while the Applicant was arranging a Ahle-Hadees gathering, Naveed and his friends armed with hockey sticks confronted and assaulted him that he suffered bruises all over his body, and before they left, Naveed threatened to kill him next time unless he reverted his support back to Ahle-Hadees.

5.  Fearing for his life, the Applicant fled to Lahore and Faisalabad, but when he later heard that Naveed and his followers were still looking for him everywhere, he departed Pakistan in February 2016 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a

6.  By a Notice of Decision dated 16 June 2018 the Director of Immigration

7.  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 his claimed risk of harm from Naveed upon his return to Pakistan would materialize due to the low intensity and frequency of past ill-treatment from Naveed, that 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 (“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 Karachi where it would be difficult if not impossible for Naveed to locate him.

8.  On 26 June 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 10 October 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 29 November 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to how he was under the influence of his former school teacher to change his support from Ahle-Hadees to Ahle-Sunnatand the resultant threats from his Naveed that it doubted the credibility of his claim of fear of harm from Naveed, and that in any event it was a private personal religious dispute between the two of 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 that his claim for non-refoulement protection failed on all applicable grounds.  

10.  On 9 December 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both 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 he was not given any legal representation or legal aid for his appeal before the Board which is unfair and harsh to him given that English is not his first language; and

(2)   that the Director and the Board did not consider or take into account the real situation of Pakistan in their assessment of the risk and danger he would face in his claim.

11.  For his complaint under Ground (1) of not being provided with legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar(2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a non-refoulement claimant must have an absolute right to free legal representation at all stages of the proceedings.

12.  The Applicant already had the benefit of legal representation from DLS in presenting his claim to the Director, and was able to testify and make representation in his appeal hearing before the Board with the assistance of an interpreter and without any difficulty.  As such and in the absence of any particulars or specifics from him to demonstrate that the basis of his claim had indeed been wrongly interpreted or understood by the Board, I do not find any basis or merits in this complaint of the Applicant.

13.  As for his complaint under Ground (2) that the Director and the Board did not take into consideration of the real situation of Pakistan, given their detailed consideration and analysis of the background information provided by the Applicant and the relevant COI as to the current situation in Pakistan as referred to in their decisions, as well as the nature of the Applicant’s claim based on his own case and as correctly found by both the Director and the Board to be a private personal dispute without any official involvement that state/police protection and reasonable internal relocation would negate his claimed risk, I do not find this ground reasonably arguable for his intended challenge either.  

14.  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 ChamindaPushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.  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.

16.  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.

17.  Furthermore, the Applicant has recently in October 2021 written several letters to the court requesting to “close” his case because his problem has been resolved and that he wants to return to his home country. 

18.  In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his wish to return to Pakistan as his problem in his home country has been resolved, I accede to his request and accordingly dismiss 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