AWAIS MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 860/2021

[2024] HKCFI 2346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 860 of 2021

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Awais Muhammad (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 27 November 2020 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 2 November 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  As set out in the DOI Decision and the Board’s Decision, the Applicant is a Pakistani. He was born on 26 April 1988.

3.  He was born in Gujranwala, Pakistan. He received around 10 years of education and had around 6 years of work experience. He worked as a labourer in Pakistan from 2009 to 2013 and as a foreign domestic helper in Hong Kong from 2013 to 2015.

The Claim

4.  The Applicant joined the Pakistan Muslim League (Nawaz) (“PMLN”) in around 2010 as an ordinary member without holding any official post. His parents and siblings all voted for PMLN. He helped PMLN in a local election campaign in around 2012. He helped in delivering leaflets and convincing people to vote for PMLN.

5.  One day, a group of 5 to 6 supporters of the opposing political party, Pakistan Tehreek-e-Insaf (“PTI”) (“PTI Supporters”), got into a heated argument with the Applicant. The PTI Supporters then attacked the Applicant for about 10 minutes.

6.  Some passers-by intervened and the PTI Supporters left. One of the PTI Supporters named Usman (“Usman”) warned the Applicant that he would be killed if he made a police report.

7.  The Applicant had a bleeding nose and bruises all over his body. He bought some medicine at a shop to treat his injuries and it took him about a week to recover.

8.  The Applicant ran into Usman on the street on three other occasions, when Usman told him to stop helping PMLN. The Applicant claimed that Usman was a prominent figure in his home area and he believed Usman could harm him. Because of his fear for Usman, he did not make a police report.

9.  PMLN won the local election in his home area in 2012.

10.  After the Applicant lodged the Claim, his family and friends in Pakistan told him that Usman was still looking for him because of the past dispute.

11.  The Applicant feared that if he were to be returned to Pakistan, his life would be in danger from Usman and the PTI Supporters.

Procedural history

12.  The Applicant came to Hong Kong on 19 June 2014 to work as a foreign domestic helper. He was arrested on 10 September 2015 and later convicted of breach of condition of stay for taking up unapproved employment. By written representations of 9 December 2015 and 5 February 2018, the Applicant lodged the Claim.

13.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (the “Ordinance”) (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (the “BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

14.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (the “Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

15.  On 11 June 2021, the Applicant filed the Form 86 herein (the “Form 86”) seeking leave for judicial review of the Board’s Decision and the DOI Decision. The Applicant named both the Board and the Director as proposed respondents in the Form 86. He also named the Board as an interested party.

16.  In the Form 86, the Applicant referred to the DOI Decision dated 9 November 2018. In fact, the DOI Decision was dated 2 November 2018. It was the Applicant’s notice of appeal for the Appeal which was dated 9 November 2018.

17.  The Applicant filed his supporting affirmation on 11 June 2021 (the “Supporting Affirmation”).

18.  On 13 June 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application, stating that his conflict in Pakistan had been resolved and he hoped to go back to Pakistan (the “Withdrawal Application”).

The DOI Decision

19.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that there would be any real and substantial risk of the Applicant being harmed or killed by Usman or the PTI Supporters upon his return.

20.  The low intensity and frequency of past ill-treatment was indicative of a small future risk upon the Applicant’s return to Pakistan. The Director noted that the PTI Supporters had the opportunities to seriously harm him if they wanted to, but they refrained from doing so. This showed that they did not really intend to cause him serious harm and only wanted to pressure him into stopping his support for PMLN.

21.  Having considered the intensity and frequency of the past ill-treatment, the mode and nature of the physical attack and verbal threats, the level of the injuries sustained and the medical treatment received by the Applicant, the Director did not accept that any ill-treatment, whether physical or mental, inflicted upon the Applicant by Usman and the PTI Supporters, attained a minimum level of severity.

22.  The Director was of the view that the Applicant was just an ordinary member of PMLN. He did not have any official post in PMLN or any special skill or experience that would make him particularly valuable in helping PMLN. It was highly unlikely that the PTI party as a whole would be interested in locating him or harming him. His problem with the PTI Supporters in his locality was only a private grudge.

23.  The Applicant was not a target of adverse interest to the Pakistani government as he could depart Pakistan by using his own passport without encountering any problem from the Pakistani authorities. There was no evidence indicating that the ill-treatment inflicted on the Applicant by Usman and the PTI Supporters was by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.

24.  On the issue of state protection, the Director found that there might be some problems with effectiveness and efficiency within the Pakistani police but there were objective indications in the country of origin information (“COI”) that the authorities took steps to improve the police force. The Director did not accept that reasonable protection from the Pakistani government would not be available to the Applicant upon his return.

25.  The Applicant never attempted to make a police report and there was no evidence to suggest that if he did, he would be denied protection by the Pakistani police or harmed by Usman.

26.  The Director opined that the Applicant’s problem in Pakistan was just a localized one. Pakistan is a large country spreading across 796,000 sq. km. with an estimated population of over 204 million people. The Applicant had many viable alternatives to relocate to other districts of Pakistan such as Karachi and Lahore. There was no substantial ground to believe that Usman and the PTI Supporters had the abilities and resources to locate the Applicant nationwide in Pakistan.

27.  The Director viewed that the Applicant’s perceived threat of harm by the PTI people was a localized issue only. The risk of harm was assessed to be small especially if the Applicant could relocate to other places far away from his home area. Being an able-bodied adult with 10 years education and 6 years working experience, the Director was of the view that it was not unreasonable and unduly harsh for the Applicant to relocate to other areas in Pakistan to lower or negate the perceived risk of being harmed by the PTI supporters.

28.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

29.  The Board after considering the Applicant’s claims including his written representation, his claim form, the record of his interview with the immigration officer, his notice of appeal and his oral evidence given at hearing before the Board, formed the view that on a balance of probabilities, the Applicant gave a credible account about his situation in Pakistan.

30.  After looking at the frequency and severity of the ill-treatment inflicted by the PTI Supporters on the Applicant in the past, the Board found that the mental and physical harm inflicted by them did not meet a minimum level of severity. Further, the PTI Supporters met the Applicant on a number of occasions and they could have inflicted serious harm on him if they wanted to. However, they refrained from so doing and this suggested that they did not intend to seriously harm him.

31.  The Board further found that state protection would be available to him upon his return. COI showed that the Pakistani authorities had made substantial effort to improve the effectiveness of the Pakistani police and monitor their conduct. The Applicant never sought help from the Pakistani police against the PTI Supporters. There was inadequate basis to suggest that the Pakistani police would not discharge their duties properly if the Applicant had sought police assistance.

32.  On the issue of internal relocation, the Board found that Pakistan has a broad land area with over 200 million people. The Applicant had many options for relocation, such as Karachi and Lahore. It would be very difficult for the PTI Supporters to locate him if he chose to relocate to those cities because there was no substantial ground to show that they had the abilities to locate him nationwide.

33.  The Board was not persuaded that the Applicant would face a personal and substantial risk of his right to life being violated should he be refouled back to Pakistan. His claim under BOR 2 risk failed.

34.  The Applicant had not been subjected to pain and suffering sufficiently serious to reach a minimum level of severity for it to fall within the scope of BOR 3. The Board was not persuaded that the Applicant would face a genuine and substantial risk of being subjected to ill-treatment if he were refouled to Pakistan. His claim under BOR 3 risk also failed.

35.  The Board found that the Applicant’s alleged fear of ill-treatment did not fall within the definition of “persecution” and it was doubtful as to whether such fear was well-founded. As state protection and internal relocation were available to the Applicant, the perceived risk of harm, if any, was avoidable. His claim under persecution risk failed.

36.  The Board was also not persuaded that there was any foreseeable, real and personal chance that the Applicant would be killed or harmed by Usman and the PTI Supporters. The Applicant failed to establish that there were substantial grounds for believing that he would be subjected to severe pain or suffering if he were refouled to Pakistan.

37.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

38.  In a judicial review, the court does not step into the shoes of the decision makers.

39.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board”.

40.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

41.  The Applicant did not advance any grounds for his intended judicial review in the Form 86 or the Supporting Affirmation. In the Supporting Affirmation, the Applicant only stated that he did not agree with the DOI Decision and the Board’s Decision because they erred in their decisions. He stated that the Board erred in §§36 to 45 of the Board’s Decision. He further stated that:

“when PMLN won the election in 2012 then my opponent Usman lost the poplurity [sic]. his party lost with very low margin and now he thinking if i dont [sic] support my party and i leave that time then we [sic] had a chance to won the election in his opinion. but he is still looking for me he will not leave me alive bcz [sic] he already lost his all wealth and property. but still he have connection with the PTI member who won in the other area”.

42.  The Applicant only exhibited the Board’s Decision to the Supporting Affirmation without other supporting documents. In effect, the Applicant seeks to challenge the findings of fact of the Director and/or the Board which is not permissible in a judicial review.

43.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. In §§36-45 of the Board’s Decision, the Board discussed the availability of state protection and internal relocation. The Board also assessed each of the risks claimed by the Applicant and stated reasons for its findings.

44.  The Applicant did not provide any particulars or specifics as to how the Board had erred in §§36- 45 of the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

45.  Having rigorously examined the Board’s Decision, the DOI Decision and the Supporting Affirmation with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness.

46.  The Board found that the injuries claimed to have been suffered by the Applicant in the incidents were not serious; the alleged ill-treatment suffered by the Applicant did not meet the threshold of “a minimum level of severity”; the Applicant was not targeted by the government authorities of Pakistan; the attacks and threats encountered by the Applicant were localized issues not acquiesced by government authorities; reasonable state protection was available; and internal relocation was a real possibility for the Applicant in Pakistan. It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court on a judicial review will not interfere save when such findings involved error of law, procedural unfairness and irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Board’s Decision is without fault. The proposed judicial review does not have realistic prospects of success.

The Withdrawal Application

47.  The Applicant subsequently filed the Withdrawal Application on 13 June 2024.

48.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

49.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

50.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

51.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss his application for leave to apply for judicial review.

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