MUHAMMAD SHAHBAZ v. TORTURE CLAIMS APPEAL BOARD

HCAL 2101/2018

[2022] HKCFI 1226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2101 of 2018

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 49-year-old national of Pakistan who entered Hong Kong illegally on 1 February 2014 and was arrested by police on 1 April 2014. 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 his uncle and cousin over their political dispute. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Imran Colony, Islanwala, Gujranwala, Punjab, Pakistan. After leaving school he worked as a rickshaw driver and a general labourer in his home district, and supported the political party Pakistan Peoples Party (“PPP”) by regularly attending their local meetings and rallies.

3.  One day in 2012 while he together with his fellow PPP supporters were campaigning for their candidate in a local election, they were confronted by his uncle and cousin with their fellow supporters of rival political party Pakistan Muslim League (N) (“PML(N)”) with demand for them to stop campaigning in the street, and when the Applicant refused, a fight broke out between the two groups but no one was seriously injured.

4.  A few months later when the Applicant ran into his uncle and cousin in the street, another quarrel broke out between them during which the Applicant was struck by them with wooden sticks that he suffered injuries to his back.   

5.  After his subsequent report to the police had led to nowhere, the Applicant was advised by his family to leave his home district to avoid further confrontation with his uncle and cousin, and so in early 2013 he left for Islamabad where he worked as a casual labourer for several months before returning to his home in Gujranwala, but in mid-2013 when he was again threatened by his uncle and cousin, the Applicant felt it was not safe to remain in Pakistan, and so in early 2014 he departed 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 25 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 22 February 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of his claim which was found to be fraught with internal inconsistencies which was further undermined by his failure to raise his claim upon first arrival in Hong Kong until 2 months later after his arrest by the police, that in any event even if his claim were true that it was a private family dispute between him and his uncle and cousin without 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 part of Pakistan away from his home district in large cities such as Islamabad where he had stayed and worked before without incidents and where it would be difficult if not impossible for his uncle and cousin to locate him.

8.  On 6 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the decision of the Director, and for which he attended an oral hearing on 27 June 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found the Applicant to have substantially changed his claim of fear of harm from his uncle and cousin as previously stated in his claim to the Director to one of fear of not being able to obtain proper medical treatment in his home country in Pakistan for his heart problem which he claimed to have occurred in Hong Kong, but found no medical evidence in support of his assertion, and that even if indeed his claim of having heart problem were true that according to relevant COI that proper medical treatments and health care services would be available to the Applicant in Pakistan in the same way for all its citizens that it concluded that his return to Pakistan would not involve any risk to his rights under BOR 2 or 3 or any risk of any of the proscribed harm from his uncle or cousin or anyone in his home country that his claim for non-refoulement protection failed on all applicable grounds.        

10.  On 3 October 2018 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, and in his supporting affirmation of the same date he just repeated his claim as before that his life would still be in danger in his home country but without putting forward any proper ground for his intended challenge, nor did he 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.

11.  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.

12.  In the Applicant’s case, the Board rejected his claim essentially on its finding of no risk of any harm from his uncle or cousin or lack of proper health care for his claimed heart problem upon his return to Pakistan for the thorough and detailed analysis and reasoning set out in paragraphs 26 – 75 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 finding of the Board.  

13.  Furthermore, the fact that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim from his uncle and cousin is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  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.

15.  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