ASIF MUHAMMAD AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 639/2019

[2023] HKCFI 1421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 639 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicants being present in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The 1^st applicant and the 2^nd applicant are husband and wife, the 3^rd to the 6^th applicants are their children and this is their joint application, which relies upon the facts of the 1^st applicant. They are collectively referred to as (“the applicants”).

2.  This is their joint application for leave to apply for judicial review of the Decision dated 12 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

3.  The applicants are members of a family. I shall refer to the 1^st applicant as the applicant, the 2^nd applicant as Sobia, the 3^rd applicant as Zaryab, the 4^th applicant as Subhan, the 5^th applicant as Noor and the 6^th applicant as Azaan.

4.  The applicants appeared before the Court on 7 December 2022.

5.  Before the hearing, the applicants applied for an adjournment pending the result of their appeal against the Director of Legal Aid (“DLA”), who had refused their application for legal aid. The applicant relied upon the reasons that he is not satisfied with the Board’s Decision and the Board had not considered the children’s claims separately, contrary to the Court of Appeal’s decision in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971

6.  The application for adjournment was refused for the reasons:

(1)  the matter had been adjourned for their application for legal aid under section 15 and regulation 7A of the Legal Aid Ordinance, Cap. 91;

(2)  the law does not provide for further adjournment for the result of their appeal against the DLA’s decision; and

(3)  Fabio ‘s case refers to the situation where the minors were not legally represented before the Board and for that reason, the minors’ interest might not have been submitted to the Board for separate consideration. The applicants were legally represented before the Board and their interest had been well protected by legal representation.

The applicants

7.  The applicants are nationals of Pakistan. The applicant entered Hong Kong illegally on 9 February 2007. On 20 February 2007, he first raised his refugee application with the UNHCR Hong Kong office. On 14 May 2007, he was arrested by the Hong Kong police.

8.  The applicant’s wife, Sobia, entered Hong Kong illegally with their first son, Zaryab, and second son, Subhan, on 24 October 2007. On 28 October 2007, they were arrested by the Hong Kong police. On 4 December 2007, they also raised their UNHCR claims.

9.  On 13 September 2008, Sobia gave birth to their daughter, Noor, in Hong Kong. On 19 May 2016, she also gave birth to their third son Azaan. Up to date, Zaryab, who was born on 18 March 2002, is now almost 21 years old, an adult. The other siblings are still minors.

10.  On 26 August 2011, the applicant raised a torture claim, together with Sobia, Zaryab, Subhan, and Noor. Their torture claims were eventually rejected on 19 February 2013.

11.  By way of written representations respectively dated 28 February 2013, 14 March 2013, 24 June 2016 and 15 March 2017, the applicant lodged non-refoulements for himself and on behalf of his wife and four children. In light of the previous failed torture claims made by the applicant, Sobia, Zaryab, Subhan, and Noor, their non-refoulement claims were assessed on all applicable grounds other than that on torture risk as described below. On the other hand, the claim of their third son, Azaan, was assessed on all four applicable grounds.

12.  Their claims were made on the same basis that, if refouled, they would be harmed or killed by the extortionists. The applicant also feared that he would be wrongfully arrested and imprisoned because of the false case filed against him and that his children would not be safe.

13.  The background of their claims could be summarized as follows:

(1)  The fear of harm originated from the dispute between the applicant’s deceased brother, Aman, and a group of extortionists. According to the applicant and Sobia who was Aman’s wife before she married the applicant, Aman ran a small business in dealing properties. He was kind-hearted and also helped the underprovided in villages like Warsalkay and Rehan Cheema.

(2)  Aman’s pro bono activities to help the local citizens to solve problems irritated the extortionists who derived their benefits from extorting money from the local citizens in exchange for their assistances. The extortionists, including Maqsood, Mehmood, Yasir, and Aslam (deceased in October 2004), were dangerous criminals and had political connections.

(3)  As a result, on 25 February 2003, Aman had a verbal dispute with Maqsood. On 28 February 2003, Aman was called to the police station with an aim to reach a compromise with Maqsood. He met with the group of extortionists, as well as two deputy superintendents of the police, who were their relatives. Despite the presence of the police, the extortionists killed Aman.

(4)  On the same date, the applicant’s mother reported the murder to the police station. Aslam, father of Maqsood and Mehmood, was arrested and had been detained for a year before Maqsood and Mehmood surrendered themselves. Thereafter, all three of them were charged, tried, but eventually acquitted for the murder of Aman.

(5)  The following day, the applicant’s family received the first verbal threat, demanding them to drop the criminal complaint against the extortionists. Thereafter, the applicant escaped to Gujranwala where he did not encounter the extortionists.

(6)  On 31 January 2003, the extortionists visited the applicant’s house, assaulting his parents and threatening to kill him if he did not drop the complaint. Feared that he would be located by the extortionists, the applicant fled to France. Meanwhile, his parents, the only surviving witnesses for his brother’s murder trial, had to run around and hide in different places with the assistance of his brother’s friend Tariq. Unfortunately, Tariq was later killed by the extortionists.

(7)  On 17 February 2004, the applicant married Sobia. He was also granted a permission to stay in France where he could work and was able to remit money to his parents.

(8)  On 12 October 2004, Aslam and his son Naveed were murdered. Thereafter, a false case was filed against the applicant’s parents and his other relatives for murdering Aslam and his son. His parents surrendered to the police station.

(9)  In August 2005, the applicant returned to Pakistan with the intent to take his parents and wife to France. After he arrived home, he had hidden in his neighbour’s house as his neighbour told him that Yasir and Mehmood wanted to locate and kill him. In the meantime, he lost his passport and thus was unable to return to France without a visa.

(10)  Feared that he would be found, the applicant took Sobia and Zaryab to Gurjranwala. He was also informed that his parents were released on bail and had been living in the houses of different relatives.

(11)  In October 2005, while wandering on the street, he was told by a local man that the extortionists were still looking for him. He immediately fled to Islamabad with Sobia and Zaryab. There, he was able to attend the French Embassy. Yet, his visa renewal application was still pending.

(12)  In 2006, the applicant moved to stay with Sobia’s parents in Kular. But the police came to look for them. They were able to escape and moved to Ghakhar.

(13)  On 17 December 2006, the applicant was framed for offences of drunk driving and possessing a firearm. He did not know about the false case against him until he came to Hong Kong.

(14)  In January 2007, the applicant’s father was wrongfully detained for refusing to disclose the applicant’s whereabouts as there was another false case filed on 30 December 2006 against the applicant for killing four unknown men. Out of fear, the applicant decided to flee to Hong Kong for protection.

(15)  Shortly after the applicant arrived in Hong Kong, he learnt that his parents were constantly harassed by the police and assaulted by the extortionists. At the same time, they also attempted to kidnap Zaryab.

(16)  All in all, the applicant feared that the family feud with the extortionists was so deep that they wanted to kill the applicant’s whole family. He also feared for the false cases filed against him. Therefore, they sought protection in Hong Kong. Details of their claims were set out comprehensively at paragraph 8 of the Notice of Decision dated 28 July 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

14.  The Director considered their applications in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); this ground was only for the fourth son, Azaan;

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

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

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

15.  The applicant submitted voluminous documents in support of their claims [9]-[20]. Through his duty lawyer, he also made further submissions. In particular, the applicant was diagnosed to have severe depression and possibly post-traumatic stress disorder. He also feared that, if refouled, his children would be harmed by the extortionists given the prior attempted kidnaps of Zaryab. If any harm was caused to his children, the applicant would have severe mental sufferings as he could not protect them. He also claimed that the extortionists were influential enough to detain his father and they were able to locate him elsewhere in collusion with the police. Given the false cases filed against him, he also believed that he could not get a fair trial if refouled, especially when there was a false case filed against him on the offence of possessing firearm which might attract death penalty [21].

16.  By way of the Director’s Decision, the Director rejected their claims as their claimed fear of harm from the extortionists were groundless. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [30]; (ii) state protection would be available to them [31]; and (iii) internal relocation was a viable option [32]-[36].

The Board’s Decision

17.  The applicants appealed the Director’s Decision to the Board. On 6 June 2018, the Board conducted an oral hearing for their appeals, during which they were legally represented and assisted by an interpreter [15]. The applicant, Sobia, and Zaryab attended the oral hearing and testified [17]-[18]. Both parties’ legal representatives made submissions to the Board.

18.  The Board recapped the applicant’s claim in details [29]-[72]. In considering the country of origin information (“COI”), the Board accepted the applicant’s submissions about the divergence between the system for the investigation and prosecution of crime as it was intended to operate and what happened in practice, as well as the culture of blood feuds in the tribal areas of Pakistan [84]-[85]. It also considered the stances of the Director [86] and those of the applicant [88]-[89].

19.  Having considered all the available information, the Board made the following findings:

(1)  The murder of Aman: the Board considered that the register of deaths provided by the applicant was consistent with his claim about Aman’s death [91]-[92];

(2)  The extortionists: the Board accepted that the named extortionists might still involve in criminal activities but found that, even on the applicant’s own evidence, their power and influence did not extend to all other parts of the risk state [93]-[99];

(3)  The involvement of the police: the Board considered that, on the applicant’s own evidence, the police was willing to take actions upon receipt of the complaints [100]-[102];

(4)  The applicant as a target of the extortionist: the Board found that the applicant’s evidence on whether he became the target of the extortionist was inconsistent. Further, even if the extortionists targeted him due to the so-called blood feud, it would still be implausible as the applicant’s parents, and relatives who were still in their home country remained unharmed by the extortionists [103]-[108];

(5)  The applicant’s return to Pakistan from France: the Board found that the applicant’s return to his home village and stay a place nearby were inconsistent with someone who genuinely feared a risk of harm [114]-[117];

(6)  Despite the aforesaid findings, the Board concluded that, for the purpose of its decision, the applicant was at a real risk of harm from the extortionists at the date when he last left Pakistan [118];

(7)  Meanwhile, it further accepted that Maqsood and Mehmood might still hold grudges against the applicant and he might face real risk of harm if he returned to Sialkot or its immediate surroundings [119]-[121];

(8)  Insofar as the applicant’s claimed false cases were concerned, the Board cast doubt on their authenticity and decided not to place any weights on them [125]-[127];

(9)  As to the availability of state protection, the Board found that the apparent leader of the extortionists was able to escape from capture for six years and thus state protection might not be adequate if the applicant and his family returned to their home in Rehan Cheema [122]-[128];

(10)  The Board further considered the issue of internal relocation. It refused to accept the argument on registration of tenants which might lead to the applicant’s arrest due to the false cases and found that internal relocation to Faisalabad, ICT or Hyderabad would be available to the applicants [129]-[137]; and

(11)  Finally, in relation to Sobia and their children, the Board found that the applicant had not advance a separate and distinct claim in respect to them and, for the same reasons stated above, the Board also rejected their claims and dismissed their appeals.

20.  Therefore, the Board rejected the applicants’ claims and dismissed their appeals.

Application for leave to apply for judicial review

21.  The applicants filed their joint application by Form 86 on 6 March 2019 for leave to apply for judicial review of the Board’s Decision.

22.  In the applicant’s affirmation in support of their joint application, the applicant has submitted a bundle of documents with his 4 grounds as follows.

(1)  The Board’s finding that internal relocation is available to them is manifestly unreasonable, particularly where the Board’s finding that there was a lack of state protection in Silakot, where they are from and where they faced real risk of loss of liberty, ill-treatment, torture and loss of life. The Board had not addressed the issues as whether the area of relocation is safe and accessible to them, whether the agent of persecution is the state? And will the applicants be exposed to risk of prosecution upon return? The applicant has cited a number of legal authorities in support of his arguments.

(2)  The Board’s finding that state protection exists in other parts of Pakistan is manifestly unreasonable as there is no evidence that state protection exists in other parts of the country. The applicant has also cited a number of cases in support of his arguments.

(3)  The Board had down-played and in part ignored compelling COI (and refused to even assess the existence of a consistent flagrant pattern of human rights abuses which exists in Pakistan) which amounts to both unreasonable decision and an error in law. The adjudicator had ignored the most recent UN Human Rights reports and ICJ Reports.

(4)  The applicant’s actions and public challenge to those threatening targeting them became a public condemnation in the courts and media. The exercise of rights and the criticism and challenge to a corrupt government amounts to political opinion and thus grounds for refugee protection. He has also cited cases in support of his arguments.

DISCUSSION

23.  As a preliminary issue, although there are minors in their joint application, the case of Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971 does not apply to them as they were legally represented before the Board. As to the position before this Court, I shall deal with it accordingly after considering the merits of their case.

24.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

25.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he understands the Director’s Decision and the Board’s Decision. He agreed that he and the other applicants were legally represented before the Board. He further said the Board did not consider many things in his case.

26.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

27.  I shall consider the grounds put forth by the applicant in paragraph 22, supra. It is important to bear in mind that the applicant and his family were legally represented before the Board.

Ground (1)

28.  The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 Hon. Cheung CJHC, Stock VP and Fok JA (as they then were), 21 November 2012 has set out the relevant legal principles for the issues:

“32. Fourthly, the question of internal relocation (otherwise known as “internal flight”). This is a concept common to refugee law and torture claims. The rationale is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT.

33. … If the risk of torture is for one reason or another a localised one, one must move on to ask whether it is reasonable to expect the torture claimant to relocate to the alternative place or any of the alternative places under consideration or whether it would be unduly harsh to expect him to do so.

35. Fifthly, who bears the burden of proof regarding internal relocation?... It is for the claimant to make out his case. In relation to the internal relocation issue, he accordingly bears the burden of proof.

37. 38. Sixthly, what is the “standard of proof” regarding internal relocation? ... The question is simply whether, taking all relevant matters into account, the return of the claimant would be unreasonable or unduly harsh.

52. …the applicant is and was throughout legally represented. If they had found it advisable to do so, the applicant and his legal representatives could have obtained for themselves without much difficulty a great deal of information which they now say the Director or the adjudicator should have obtained for them. … If the applicant and his legal representatives have not seen fit to obtain and supply such information to the adjudicator, I do not believe that high standards of fairness would require the adjudicator to direct the Director to obtain such information for the applicant. …’

There is no doubt that the applicant’s legal representative had presented their case for the Board’s consideration. Having considered the evidence and the submissions, the Board had found at paragraphs 99, 137 and 144 of the Board’s Decision:

“99. … … In the circumstances, I find that their power [the extortionists’ power] or influence does not extend beyond the area round Sialkot and that therefore it does not extend to all other parts of the country.”

“137. I consider that the Applicant and his family could safely relocate to another city in Pakistan either within Punjab Province, such as Faisalabad, or to ICT or Hyderbad in Sindh Province, which have separate authorities from Punjab. All are large cities with a majority or substantial minority of Punjab speakers.”

“144. I have found for the purposes of this decision that there is a real risk that the Applicant would be harmed if he returns to his home in the Sialkot district. I have also held that in that district, state protection may not be sufficient to protect him from that harm and his right to life would be at real risk and he would face the prospect of torture or CIDTIP.”

In other words, the applicants’ risks, which the Board accepted, are localized risks. The applicant has no evidence to challenge the Board’s findings on this ground.

As to the applicant’s complaint that the Board had failed to consider the situations as stated in Ground (1), the applicant did not allege that their legal representative had put those issues before the Board and the adjudicator had failed to consider them. As was decided in TK’s case, the burden is on the applicants to prove the issue of internal relocation, if their legal representative did not raise them before the Board, the Board has no burden to take them on board as the Court of Appeal in Re: RS CACV 206/2012, unrep., Hon Lam, Barma JJA and Macrae J. 20 August 2013 held:

“57. The high standards of fairness do not require the Adjudicator to play the role of an adviser to the Applicant to cover every possible gap in the Applicant’s case…”

Ground (2)

29.  The Board found that state protection will be available to the applicant if he returns to Pakistan, though he also found that, given the capabilities of the extortionists, sufficient state protection may not be available to him if he returns to Rehan Cheema. There is a discussion on state protection in paragraphs 122 to 128 of the Board’s Decision. At paragraph 128, the Board said:

“128. Even allowing for the many defects in policing in Pakistan as evidenced by the COI referred to by Mr. Lucas I find that there would generally be sufficient state protection for the Applicants if they return to Pakistan, but I am concerned that in the area in and around Sialkot, the apparent leader of the Extortionists evaded capture for six years and that other members of the gang may still be operating in the area. For the purposes of this decision, I accept that state protection may not be adequate if the Applicants return to their home in Rehan Cheema.”

I note that the applicant disagrees with the adjudicator. But his personal opinions are not supported by any evidence.

Ground (3)

30.  The same reasons in relation to Ground (2) apply to this Ground as the applicant did not allege that their legal representative had made the submissions and the Board did not consider them. This is, therefore, the applicant’s personal opinion without any evidence in support. The Court of Appeal in Buniag Renante Lulu v Torture Claims Appeal Board and Director of Immigration [2022] HKCA 836 (13 June 2022), held:

“29. … … general assertions or propositions of law cannot assist the applicant when he fails to condescend to the requisite particulars related to the facts of his case: see Re Mizan Sikder [2019] HKCA 20; Ibrahim v Simon Russell [2019] HKCA 1327; Re Salim Ahmen [2020] HKCA 244.”

Ground (4)

31.  Having considered the evidence and arguments from the legal representatives of the parties, the Board found in paragraph 140:

“I have found for the purposes of this decision that the Applicant would face a real risk of harm if he returns to the place in Pakistan where he and his family lived. However, that risk arises from a personal vendetta pursued against him by local gangsters, Maqsood and Mehmood, arising from the murders of one of the Applicant’s brothers and of the father and brother of Maqsood and Mehmood. I have found that the vendetta appears is personal to the Applicant and has not been pursued against his wifer family; the risk is not for a convention reason.”

The Board is entitled to reach its conclusion on the facts of the case after hearing the evidence and legal submissions. The applicant has not been able to submit any evidence to challenge the Board’s findings of the facts.

32.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

33.  The applicants fail to show that they have any realistic prospect of success in their proposed judicial review. Accordingly, I refuse to give leave to the applicants to apply for judicial review of the Board’s Decision.

DISPOSITION

34.  The applicants’ application for leave to apply for judicial review of the Board’s Decision is dismissed.

35.  I further hold that the non-compliance of Order 80 of the RHC in relation to the lack of legal representation of the minors in this application is only an irregularity and will not render the proceedings a nullity under Order 2, rule 1(1) of the RHC.

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