ALI MUHAMMAD QASID v. TORTURE CLAIMS APPEAL BOARD

HCAL 806/2020

[2024] HKCFI 1532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 806 OF 2020

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 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 41-year-old national of Pakistan who arrived in Hong Kong on 25 June 2014 as a visitor, but when he was refused entry by the Immigration Department, he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by the local members of the political parties Muslim Conference Party (“MCP”) and/or Pakistan People’s Party (“PPP”) as he supported their rival Jammu Kashmir National Awami Party (“JKNAP”) and/or by the local police for being involved in a rally organized by his party which turned violent and caused injuries in the chaos. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Kotli, Azad Kashmir, Pakistan. After leaving school he helped out in his brothers’ vehicle spare parts business in his home district, and supported JKNAP regularly attended their local meetings and activities, during which he and his fellow JKNAP supporters would encounter hostilities from rival supporters of MCP and PPP.

3.  In 2010 MCP became the ruling party after winning the general election whereupon their local supporters started to harass and intimidate JKNAP supporters including the Applicant.

4.  One evening some MCP supporters approached the Applicant to ask him to join their party, and when he refused, they warned him to watch out that something bad may happen to him.

5.  As a result the Applicant became concerned for his safety, and started to cut down on his involvement in JKNAP and stayed mainly at home after work.

6.  In June 2011 during a local election in his home village, the Applicant was again approached by some PPP members to join their party, and when he refused, those PPP members also made threats against him.

7.  Shortly thereafter one evening while he was on his way home, the Applicant was ambushed by some unknown men who attacked him with wooden sticks that he collapsed and lost consciousness, and was subsequently taken to the local hospital for medical treatments.

8.  Upon discharge from hospital, the Applicant suspected that his assailants were sent by MCP or PPP and became fearful for his life, and to avoid any further attacks he therefore left the country in September 2011 for Saudi Arabia where he stayed until February 2014 before returning to Pakistan.

9.  However, shortly thereafter he noticed everywhere he went he was being followed by unknown men, and about 2 weeks later one night he was attacked by those men who then brought him to an unknown place where he was beaten and was interrogated some 2 weeks about his involvements in JKNAP before he was eventually released.

10.  After the incident the Applicant ceased all his involvement in JKNAP and hid in his home most of the time, but after an incident in a local JKNAP political rally against the government in June 2014 which he did not attend but later heard that someone had made false charges against him to the police that he fled to Mirpur to hide in his aunt’s place, and on 19 June 2014 he departed Pakistan for China and then to Hong Kong, and when he was refused entry by the immigration Department he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 July 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

11.  By a Notice of Decision dated 22 October 2014 and a Notice of Further Decision dated 11 May 2017 the Director of Immigration (“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”).

12.  In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of his claim of fear of harm in his home country that he fled to Hong Kong to seek protection, that even if his account of events prior to his departure of Pakistan were true that the level of risk of harm from those local supporters of MCP or PPP or the police upon his return to Pakistan was assessed as low due to the low intensity and frequency of past ill-treatment from them and that there is no evidence of any real intention of those rival political parties to seriously harm or kill him or to have any political reasons for them to specifically target him given the fact that upon his return from Saudi Arabia he no longer had any meaningful involvement in JKNAP, nor is there any evidence of any adverse interest of the police in him and that he was able to leave the country without any difficulty, that in any event 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 spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

13.  On 5 November 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 3 proper oral hearings on 26 April 2016, 16 May 2016, and 25 July 2018 before the Board with his lawyer from DLS during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board, and with submission made on his behalf by his lawyer. On 14 April 2020 his appeal was dismissed by the Board which also confirmed the Director’s decisions.

14.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence of the account of events occurred prior to his departure of Pakistan that it doubted the credibility of his claim of fear of harm from the various persons that caused him to leave his country to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of them to harm or kill him or any political reason for them to target him given the fact that he had ceased all his involvement in JKNAP after his return from Saudi Arabia or of any adverse ineptest of the police in him for any reason, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

15.  On 4 May 2020 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 or his supporting affirmation of the same date in which he just stated that he rejects the decision as it disregarded his dangerous situation in his home country but without providing any necessary or relevant details or particulars or elaboration as to how it did so, nor did he put forth any proper ground for his intended challenge or request any oral hearing for his application. As such and in the absence of any error of law or irrationality 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 for his intended challenge.

16.  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.

17.  In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim in not just one but 3 oral hearings and with legal representation all along for him in his appeal before the Board, 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 findings of the Board.

18.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real 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.

19.  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.

20.  Moreover, the Applicant recently on 21 May 2024 filed an affirmation requesting to withdraw his application as he has got his dependent visa to remain in Hong Kong.

21.  In the premises, as I am for the given reasons not satisfied 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 withdraw his application. I 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