ABAID MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 409/2019

[2024] HKCFI 659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 409 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 47-year-old national of Pakistan who entered Hong Kong illegally on 1 January 2015 and surrendered to the Immigration Department on 7 January 2015 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the family of a murderer for giving testimony in the trial that led to the conviction of the murderer. He was subsequently being released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Channi Gujra, District Jhelum, Tehsil Dina, Pakistan. After leaving school he worked in various jobs, got married and raised a family with 3 children in his home village.

3.  The Applicant had a friend Wajid whom he heard was having a dispute with his cousin Zahoor over some land dispute between them.

4.  One day in June 2009 the Applicant saw Wajid being shot by Zahoor in the village, and after Wajid later died in the hospital, the Applicant told the police of what he saw, and as a result Zahoor was arrested and charged with the murder of Wajid.

5.  Despite having received threats from Zahoor’s family not to testify against Zahoor in the trial, the Applicant nevertheless did so, and as a result Zahoor was convicted and was given the death penalty.

6.  One day shortly thereafter the Applicant was attacked by 3 unknown men but managed to escape without injuries, and as he suspected that they were sent by Zahoor’s family to take revenge against him, the Applicant and his family moved to Dudhyal to take shelter in a relative’s place where he stayed for 2 ½ years without incidents, but as he still feared of being located by Zahoor’s family, he decided it was not safe to remain in Pakistan, and so on 22 December 2014 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 11 September 2017 the Director of Immigration (“The 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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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 Zahoor’s family 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 that those 3 assailants were sent by Zahoor’s family to kill him, that in any event in the absence of any official involvement that state and 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 area away from his home district in large cities such as Rawalpindi or Islamabad where it would be difficult if not impossible for Zahoor’s family to locate him.

9.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 21 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 8 February 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board accepted the Applicant’s claim of fear of harm from Zahoor’s family for having testified against him in the trial that led to Zahoor’s conviction but found no reliable evidence of any real intention or attempts of them to harm or kill him or that those 3 assailants were sent by them to do so, that it is not accepted that the threats from Zahoor’s family were real given the fact that the Applicant had remained in Pakistan for several years without further incidents prior to his departure of the country, and that in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 13 February 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 in his supporting affirmation of the same date he put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1)  That he was not provided with legal representation in his appeal before the Board;

(2)  That he was not given language assistance to enable him to have a better understanding of the reasons of the Director and the Board for rejecting his non-refoulement claim which was procedurally unfair to the Applicant; and

(3)  That the Adjudicator was illogical, unreasonable and unfair in rejecting his fear of being harmed or killed if refouled to his home country.

12.  For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

13.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. In the circumstances I do not find anything amiss arising from the lack of legal representation in his appeal process, and that this ground is not reasonably arguable for his intended challenge.

14.  As for his complaint under Ground (2) of not being provided with language assistance in his appeal to the Board, it is clear that the Applicant was assisted by an interpreter in his appeal hearing before the Board during which he never raised any such issue. As such and in the absence of any relevant particulars or specifics to demonstrate that the basis of his claim might have been wrongly interpreted or misunderstood by the Board, I do not find this complaint of the Applicant reasonably arguable for his intended challenge.

15.  As regard his complaint under Ground (3) that the Adjudicator was illogical and unreasonable to reject his claim, it is just a bare and vague assertion of the Applicant without any relevant details or particulars or elaboration as to how the Adjudicator did so, and as such I do not find any basis or merit in this complaint of the Applicant either.

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.  Further, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if real 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.

18.  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.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse his leave application.