MUHAMMAD ARFAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 795/2018

[2020] HKCFI 2227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 795 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 46-year-old national of Pakistan who entered Hong Kong illegally on 28 February 2008 and was arrested by police on 29 June 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by a local farmer Ishfaq and/or his family for having reported to the police of a murder committed by Ishfaq.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Gujrat, Punjab, Pakistan.  After leaving school he ran a shop in a village in Dudhra Sharqian.

3.  In February 1997 he was told by his friend Sohail of having borrowed a loan from a local farmer Ishfaq so that he could travel to Hong Kong to find employment.  

4.  Several days later the Applicant heard that Sohail had been shot, and when he rushed to the scene he found Sohail lying on the ground covering in blood but was able to reveal that it was Ishfaq who had shot him due to their dispute over the loan.  Later when the police arrived, the Applicant told them that it was Ishfaq who shot Sohail who later died in the hospital.

5.  As a result Ishfaq was arrested by the police and was charged for the murder of Sohail.  Shortly thereafter Ishfaq’s brother and several men came to warn the Applicant not to give any statement to the police or to give evidence against Ishfaq or else they would kill him.

6.  The Applicant eventually did not give evidence against Ishfaq in court, but based on the evidence of other witnesses Ishfaq was convicted by the court in 2002 and was given a death sentence.

7.  Fearing that Ishfaq’s family may still take revenge against him, the Applicant fled to Lahore to take shelter in his uncle’s place before returning to Gujrat, but when he heard that Ishfaq’s family was still looking for him, the Applicant fled to Sri Lanka and Dubai, but after staying in each place for 6 weeks, he returned to Pakistan in late 2006, staying first in Gujrat and then in Lahore, but when he heard that Ishfaq’s family was still looking for him everywhere, he felt it was no longer safe to remain in Pakistan, and so on 26 January 2008 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 29 September 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  While released on recognizance pending determination of his claim, the Applicant was told by Sohail’s brother in 2011 that Ishfaq had been freed by the court after his family had paid a bribe, but the Applicant still feared that Ishfaq would take revenge against him upon his return to Pakistan.  

9.  By a Notice of Decision dated 14 December 2016 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”).

10.  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 there will be any real and substantial risk of him being harmed or killed by his perceived enemies due to the low intensity and frequency of past ill-treatment from them, that the claimed murder case happened so many years ago and with the legal proceedings concluded that there is no reason to expect Ishfaq or his family would still have any further interest in the Applicant as evidenced by the fact that all those other witnesses who had testified against Ishfaq have remained unharmed in Pakistan, 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 of 201 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 his enemies to locate him.

11.  On 23 December 2016 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 11 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 27 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.  In its decision the Board accepted that Ishfaq and his family may have issues with the Applicant over the murder of his friend Sohail but found no evidence of any official involvement that state/police protection would be available to the Applicant if indeed he would still be under their threats after all these years upon his return to Pakistan, as well as reasonable internal relocation within Pakistan for him to safely move to other areas away from his home district without any risk of being located by his enemies that his claim for non-refoulement protection failed on all applicable grounds.  

13.  On 7 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the decisions of the Director and the Board, and in his written submission dated 18 May 2020 he put forward the following grounds for his intended challenge:

(a)  that the Director had failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which had led to an unfair outcome of rejecting his non-refoulement claim;

(b)  that the Director failed to take into account or give sufficient weight to the fact that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies which was the misconduct of police officials that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(c)  that the Director had failed to consider or give sufficient weight to his listed relevant COI which supported the Applicant’s aversions that the police in Pakistan would not be able to protect;

(d)  that the Director referred to COI which suited his pre-conceived conclusion which is a clear case of unfair attitude which would render his decision void;

(e)  that the Director failed to take into account of the fact that corruption and incompetency of the administration in Pakistan were still very serious problems of which various human rights organization had compiled reports which stated testament to the Applicant’s assertions;

(f)  that the Director failed to attain high standard of fairness required by the Wednesbury test in his decision which should be considered as unreasonable in the scope of public law;

(g)  that the adjudicator failed to make sufficient enquiry before finalizing the determination; and

(h)  that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence for his non-refoulement claim as well as his appeal.       

14.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decision, or why would state acquiescence be relevant to his claim, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to apply high standard of fairness in their assessment of his claim, or how did the adjudicator fail to give him sufficient opportunity to provide relevant evidence in support of his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and that many of them appear to be standard pro forma grounds commonly used in this type of cases but not at all relevant to his claim.  As such and in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicant, I do not find any of his grounds reasonably arguable for his intended challenge.

15.  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.  

16.  In the Applicant’s case, the fact 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.     

17.  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.

18.  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