ZAHID MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2559/2018

[2022] HKCFI 1664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2559 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 the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of Pakistan who last entered Hong Kong illegally sometime in September 2014 and was arrested by police on 8 May 2015. 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)”) for refusing to join their party and/or by some neighbours over a land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Multan, Punjab, Pakistan. After leaving school, he worked as a shopkeeper in Shahkot selling vegetable to make his living.

3.  One day in 2006 some local PML(N) supporters in Shahkot came to his shop to invite the Applicant to join their party, and when he refused, they punched and kicked him and warned him that would be bad consequences if he refused to vote for PML(N) in the election.

4.  After the attack the Applicant became fearful for his safety and fled to Lahore to take shelter in a friend’s place, but when he later ran into some of those PML(N) supporters who tried to attack him again, and although he managed to run away without harm, he felt it was no longer safe to remain in Pakistan, and so he departed one day in March 2008 for China, and from there he later sneaked into Hong Kong and raised a torture claim which he later withdrew in February 2010 without determination, and was repatriated to Pakistan in April 2010.

5.  Upon returning to his home in Pakistan, the Applicant settled down without further incidents, and in 2013 he started to support the political party Pakistan Tehreek-e-Insaf (“PTI”) regularly attended their local meetings and rallies.

6.  However, soon some of those PML(N) supporters again approached him to invite him to join their party, and when he refused, they again made threats against him that there would be serious consequences but left without further incidents.

7.  Sometime back in 2006 his family purchased a piece of land from a fellow villager who however died before signing the formal transfer documents, but as the Applicant’s family had already paid the purchase price, they therefore moved onto the land and built a house on it where the Applicant and his family had since made their home without incidents.

8.  However, some 8 years later one day in 2014, the son of the former owner came to the Applicant’s house to demand that they moved out of the house by claiming that the land still belonged to his family as his father never signed the transfer documents before his death, and when the Applicant and his family insisted that they had already paid for the land and refused to leave, the son then left angrily but later returned with some armed men who then fired some shots with their guns at the house which accidentally killed the Applicant’s sister-in-law.

9.  After the local police refused to take any action, claiming that it was a private land dispute between them, and when the son of the former owner kept making further death threats against him and his family, the Applicant fled to Khanpur to take shelter in a friend’s place, and in June 2014 he again departed Pakistan for China, and from there he again sneaked into Hong Kong, and after his arrest by police some 8 months later he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 1 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

10.  By a Notice of Decision dated 30 August 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”).

11.  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 his perceived enemies upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any further threats from those PML(N) supporters or any reason why they would still have any further adverse interest in the Applicant after all these years since he left the country, while his family’s problem with the former owner’s son was a private land dispute between them without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan 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 Karachi where it would be difficult if not impossible for his perceived enemies to locate him.

12.  On 12 September 2017 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 23 July 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 26 October 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

13.  In its decision the Board found the Applicant’s evidence vague, incoherent and unpersuasive that it doubted the credibility of his claim which had been further undermined by his failure to raise it upon his arrival in Hong Kong until his arrest by police some 8 months later that it rejected his claims in their entirety of fear of harm from certain local PML(N) supporters or the family of the former owner of his family’s land that caused him to leave his country to come to Hong Kong, and concluded that he would not be at risk of any harm in any form from anyone upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

14.  On 14 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it and his subsequent written submissions put forward the following grounds for his intended challenge:

(1) that the Director and the Adjudicator reached their decisions wrongly in assessing his non-refouleemnt claim in that they were not fair or reasonable in failing to take account of the fact that his right to life must be protected by criminal law from extra-judicial killings such as the Applicant believes that they failed to give him sufficient time or opportunity to arrange relevant evidence for his claim as well as his appeal;

(2) that it was a clear case of unfair attitude shown by them against the Applicant which is in itself enough to render the decisions void; and

(3) that they failed to recognize that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s assertions that the Director and the Board failed to attain high standards of fairness required by the Wednesbury test in their decisions.

15.  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 Director or the Adjudicator had erred in their decisions, or in what way did they show an unfair attitude towards the Applicant or how did they fail to apply high standards of fairness in their assessment of his claim, how why would protection from extra-judicial killings be relevant to his claim when even on the basis of his own case were isolated incidents of conflicts between supporters of rival political parties or private land dispute between 2 local families without any state or official involvement that there was simply no evidence of any risk of extra-judicial killings that he may face upon his return to Pakistan. None of these bare assertions were elaborated or presented with any particulars or specifics by the Applicant or are in any way relevant to his claim even based on his own case, and as such I do not find any of them reasonably arguable for his intended challenge.

16.  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.

17.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 40 – 57 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 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 to challenge the finding of the Board.

18.  Furthermore, the fact is that it has also been correctly 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.

19.  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.

20.  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