ARSHAD MUHAMMAD ALIAS FAISAL ALIAS MUHAMMAD FAISAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 660/2021

[2021] HKCFI 3898

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 660 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 refused.

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of Pakistan who first arrived in Hong Kong on 30 June 2001 as a visitor under a different name but subsequently overstayed his visa and was arrested by police on 30 October 2002 and then repatriated to Pakistan on 13 November 2002.  Some 6 years later on 24 February 2009 he again sneaked into Hong Kong from China and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by members of the political party Muttahida Qaumi Movement (“MQM”) and/or by the police as his brother was a member of rival Pakistan Peoples Party (“PPP”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Aziz Abad, Karachi, Pakistan.  After leaving school he worked as a salesman in Karachi, and supported the political party MQM by advocating the notion of the party but without any official membership or post in the party.

3.  One of his brothers MS was a member of rival PPP and their leader in the town of Lyari that was notorious for all sorts of criminal activities, and one day in 1998 the police raided the Applicant’s home looking for MS over his suspected involvement in those activities in Lyari, and when they were unable to find MS, the police detained the Applicant and his father for interrogation for MS’s whereabouts during which they were beaten but were eventually released with a warning they would be under their watch.

4.  To avoid the police harassments, the Applicant in 2001 departed Pakistan for Hong Kong where he overstayed and was eventually arrested by police and was repatriated in 2002 back to Pakistan.

5.  Upon returning to his home district, the Applicant resumed his support of MQM, but given his brother’s involvement in PPP and his subsequent departure from his country in 2001, the MQM people started to become suspicious of him for passing information to PPP, and after his father was shot dead by unknown men in 2007, he feared that it was committed by the MQM people who were targeting his family, and after he himself was attacked by some men in November 2007, the Applicant became fearful for his life, and so starting in February 2008 he departed for China on various occasions, and on his last trip to China in February 2009 he sneaked into Hong Kong, and upon his arrest by police he then raised his torture claim, and after it was rejected, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 21 December 2016 with legal representation from the Duty Lawyer Service (“DLS”) but did not attend any screening interviews before an immigration officer due to alleged medical reasons.       

6.  By a Notice of Decision dated 18 July 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 due to various inconsistencies and discrepancies in his evidence given in his SCF and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by the MQM people or the Pakistani police due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he had been specifically targeted by the MQM people or being pursued by the police given his various trips in and out of the country without any problem in the past and that he was never arrested by the police upon his return to Pakistan in 2002, 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 or Islamabad where it would be difficult if not impossible for his perceived enemies to locate him.

8.  On 7 August 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, which the Board found to have been filed a few days late but nevertheless allowed its late filing, and for his appeal the Applicant attended 3 oral hearings with his lawyer from DLS on 15 November 2018, 18 June 2019 and 29 June 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator and with submissions made by his lawyer to the Board.  On 17 March 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted the Applicant’s claim of past involvements in the political rivalry between MQM and PPP, that the police were looking for his brother as a local PPP leader, that his father had subsequently died under unknown circumstances, and that he had suffered an eye injury in an incident in his home district and for which he had been seeking treatments in Hong Kong, but found from the evidence before it that his brother was the true target of the police who had had no further interest in the Applicant after his brother had disappeared and since the Applicant’s first repatriation from Hong Kong back to Pakistan in 2002, while his claimed fear of harm from the MQM people was based entirely on suspicions only and with the relevant COI showing that PPP has since replaced MQM as the ruling party in the provincial assembly of his hometown and should no longer pose any risk to him, while his claim of fear of not being able to receive medical care for his injured eye in his home country would not amount to a proscribed harm under any of the applicable grounds, and concluded on the credible evidence before it that the Applicant will not face any real risk of any proscribed harm from supporters of MQM or PPP or the Pakistani police or authorities upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.       

10.  On 10 May 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date and his subsequent written submissions he repeated his claim as before and put forward various complaints as grounds for his intended challenge which can be summarized as follows:

(1) That the Board made its decision by relying on COI only based on online research which were not true according to the real situation in Pakistan which can only be verified by real investigation done for collecting the real data on the country;

(2) That the Board failed to properly recognize that the political issues in Pakistan have always been a big problem for the common people like the Applicant due to the corrupt political system where justice cannot be obtained unless with bribes; and

(3) That the Board failed to give the Applicant further opportunity by way of oral hearing to present his case.   

11.  These are however 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 Board or the Adjudicator had erred in the decision, 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 would corruptions in the political system in Pakistan be relevant to his case, while the clear fact is that when he was given 3 oral hearings for his appeal before the Board he was given every opportunity to present and argue his claim but he failed to do so throughout the entire process of his appeal to the Board while being represented by his lawyer from DLS.  As such I do not find any of his grounds reasonably arguable for his intended application, and in the absence of any error 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, while his request to remain in Hong Kong so as to continue to receive medical treatments for his injured eye cannot be accepted, as correctly found by the Board, as any valid ground for his intended application either.

12.  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. 

13.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his claim of fear of harm from supporters of MQM or PPP or the Pakistani police or authorities for the thorough and detailed analysis and reasoning set out in paragraphs 85 – 123 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.   

14.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true 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.       

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