IBRAR MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 102/2019

[2022] HKCFI 2245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 102 of 2019

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 refused.

Observations for the Applicant:

1.  The Applicant is a 30-year-old national of Pakistan who entered Hong Kong illegally on 16 February 2016 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 the political party Pakistan Muslim League (N) (“PML(N)”) as he supported their rival Pakistan Tehreek-e-Insaf (“PTI”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Ghourghusti, Attock, Punjab, Pakistan. After leaving school he worked in a mobile phone repairing shop in his home village, and supported PTI regularly attended their local meetings and rallies.

3.  On one occasion in early 2013 while he was putting up his party’s posters in the street for a local election, some PML(N) supporters approached him to demand him to vote for their party, but when he refused as he supported PTI, they punched and kicked him, and threatened to kill him if he voted for PTI in the election.

4.  About one month later the Applicant ran into the same group of PML(N) supporters in the street when they again punched and kicked him and made the same threats against him.

5.  After PML(N) won the local election, the Applicant feared of further threats and harassments from those local PML(N) supporters, and decided to leave his home village to work as a labourer in Dubai until November 2015 when he returned to his home village in Pakistan, but when those local PML(N) supporters started to threaten and harass him again, the Applicant departed Pakistan on 14 February 2016 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  While being release on recognizance pending the determination of his claim, the Applicant was arrested by police again on 6 December 2017 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 15 months.

7.  By a Notice of Decision dated 9 April 2018 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”).

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 there is no evidence or reason for them to specifically target the Applicant given that he was just an ordinary PTI supporter without any official post in the party, that it is not accepted that there would still be any adverse interest in him after all these years since he left the country, 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 204 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 away from his home district in large cities such as Karachi where it would be difficult if not impossible for anyone to locate him.

9.  On 19 April 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 14 December 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 3 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found from the Applicant’s evidence that he displayed very limited knowledge about PTI which he claimed to have supported prior to his departure of Pakistan that it doubted the credibility of his claimed reason for leaving his country for Hong Kong, that in any event given his claim of being just an ordinary supporter without any official post in PTI that there is no reason for those PML(N) supporters to specifically target him or to still have any adverse interest in him after all these years since he left the country, and that in any event in the absence of any official involvement that state or police protection would be available to him upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part 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.

11.  On 10 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forth the following grounds for his intended challenge:

(1)  That the Director failed to appreciate the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(2)  That the Director failed to take account of or give sufficient weight to the fact that the Applicant was attacked and injured by PML(N) supporters but that the police were under PML(N)’s control and refused to register the Applicant’s case for which 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;

(3)  That the Director had listed relevant COI which supported the Applicant’s stance that the local police would not offer to help him due to the PML(N)’s network and power and failed to consider or give sufficient weight to such evidence and instead ruled otherwise;

(4)  That the Director failed to attain high standards of fairness required by the Wednesbury test in his decision by failing to consider the fact that corruption and incompetency of the police in Pakistan are still extremely serious as documented by human rights organizations of human rights abuses carried out regularly by the police that the situation is still tremendously dangerous for its citizens; and

(5)  That the Adjudicator failed to advise the Applicant to obtain the relevant medical reports from the Pakistan authorities before deciding or assessing whether he had been mentally tortured.

12.  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 apply to his case or how the Board or the Adjudicator had erred in the decision, or what relevancy is state acquiescence 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, and in the absence of any evidence or information from the Applicant to challenge the Board’s assessment of state/police protection and reasonable internal relocation which would be available to the Applicant upon his return to Pakistan to negate his claimed risk on the basis of those relevant COI referred to by the Board, I do not find any of these grounds reasonably arguable for his intended challenge.

13.  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.

14.  Furthermore, the fact is that it has been correctly 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