ISHAQ MUHAMMAD v. DIRECTOR OF IMMIGRATION

HCAL 2075/2018

[2020] HKCFI 1528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2075 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 43-year-old national of Pakistan who entered Hong Kong illegally on 26 August 2015 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 certain 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 Village Kangar Tehsil Gujar Khan, District Rawalpindi, Punjab, Pakistan.  After leaving school he ran a motorcycle repairing shop in his home village, got married and raised a son, and became a supporter of the political party Pakistan Tehreek-e-Insaf (“PTI”) but without holding any post or office in the party.

3.  During the general election in 2013, he participated in the campaign for his party’s candidate, but after PML(N) won the election and became the ruling party, some of their supporters in his home village started to make threats against PTI’s supporters including the Applicant with demands that they should quit their party and to join PML(N) or else they would face serious consequences.

4.  One day a group of 4 – 5 PML(N) supporters came to the Applicant’s shop and demanded that he joined their party, and when he refused, they punched and kicked him until other shop owners intervened.  After those PML(N) supporters left, the Applicant made a report of the assault to the local police but no follow-up action was taken by the police.

5.  Several months later another group of PML(N) supporters came to the Applicant’s shop and attacked him with wooden sticks that he suffered bruises and bleeding and was knocked unconscious that he was subsequently taken by other shop owners to the local hospital where he was hospitalized for one week.    

6.  Upon his discharge from the hospital, and fearing further attacks from those PML(N) supporters, the Applicant decided that it was no longer safe to remain in Pakistan, and so on 21 August 2015 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non‑refoulement Claim Form on 30 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

7.  By a Notice of Decision dated 28 May 2018 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”).

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 those local PML(N) supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, 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 show that reasonable internal relocation alternatives are available in Pakistan with a large population of 205 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, Islamabad or Karachi where it would be difficult if not impossible for those local PML(N) supporters to locate him.

9.  On 6 June 2018 the Applicant 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 29 August 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 10 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found serious discrepancies and inconsistencies in the Applicant’s claim of his political involvement in PTI and the alleged threats and attacks from those local PML(N) supporters given the fact that he held no office or post in his party, and that in any event in the absence of any evidence of any official involvement that state protection would be available to him as well as reasonable internal relocation within Pakistan away from his home district in other large cities where he can safely re‑establish his work and living that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.     

11.  On 2 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form other than a board and vague assertion that the Board’s decision “is a travesty of justice and contrary to natural law” without providing any particulars or elaborations as to why it was so, while in his supporting affirmation of the same date he merely exhibited the relevant decisions of the Director and the Board.  As such and in the absence of any particulars or elaborations of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly provided or identified by the Applicant, I do not find the Applicant’s complaint reasonably arguable for his intended application.    

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 169 – 182 of its decision with the benefit of hearing him in his oral evidence and in 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 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.     

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