RIZWAN MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 809/2018

[2020] HKCFI 2586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 809 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 47-year-old national of Pakistan who last entered Hong Kong illegally on 11 December 2013 and surrendered to the Immigration Department on 3 July 2014 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the local supporters of rival political party Pakistan Muslim League (Q) (“PML(Q)”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Jalalpur Jattan, District Gujrat, Punjab, Pakistan. After leaving school he worked in the textile industry and became a supporter of the political party Pakistan Muslim League (N) (“PML(N)”) regularly participating in their activities.

3.  One day in August 2000 while he was attending a meeting held by PML(N), some supporters of PML(Q) arrived with guns and started shooting at his party’s members and supporters who then returned fire with their guns causing a few injuries on both sides, while the Applicant managed to flee from the scene unharmed.

4.  Upon returning home, he was advised by his father to leave his home district to avoid further attack, and so he fled to Karachi where he stayed for more than one year without incidents, but when he later heard that those PML(Q) supporters had made some false charges against him to the police, he therefore fled from Karachi to Quetta until December 2002 when he thought it was safe to return home,

5.  Upon returning home he continued to keep a low profile, but when he heard that the PML(Q) people and the police were still looking for him, he decided that it was no longer safe to remain in Pakistan, and so on 10 January 2003 he departed for Hong Kong where he overstayed, and upon his subsequent arrest in November 2006, he raised a torture claim which was rejected by the Immigration Department in September 2011 and was repatriated to Pakistan in November 2011.     

6.  Upon returning home the Applicant resumed his support of PML(N) which later won the 2013 general election, but one day in October 2013 while he with some of his fellow supporters sitting outside their local party office, two men on motorcycles passed by and shot at them with their guns but the Applicant managed to escape unharmed.

7.  After the shooting the Applicant again felt it was not safe to remain in Pakistan, and so on so in November 2013 he departed for China, and from there he sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 12 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

8.  By a Notice of Decision dated 13 July 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 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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that the claimed risk of harm from those local PML(Q) supporters upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for them to target the Applicant due to his insignificant position in his party, that 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 Islamabad or Lahore where it would be difficult if not impossible for those local PML(Q) supporters to locate him.

10.  On 17 July 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 13 December 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 30 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found the Applicant’s evidence as to his claim inconsistent, confused and contradictory that it did not accept what he claimed to have occurred to him in Pakistan was based on his personal or actual experiences and considered that it was fabricated to create a claim for non-refoulement protection, and that in any event if indeed the local PML(Q) people would still have any adverse interest in him that he can safely relocate to other places such as Karachi where he had stayed before without incidents and without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

12.  On 9 May 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 his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)   That both the Director and the Board failed to conduct inquiries from reliable sources and did not fully study the ground realities of his case and aftermath in case he is being forced to return to his home country;

(2)   That the decision-maker just refused his appeal without any reasonable ground;

(3)   That the Applicant is not a very educated person and sometimes confused and did not understand the questions completely or reply them precisely as he does not have a good memory and sometimes forgets; and

(4)   That in the light of the new law, relocation is practically impossible as the fight against terrorism touches new high state protection in fact is non-existent, and hence the decision is betrayed a bias and formulistic approach which could not fairly assess the danger to his life.  

13.  These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decision, or in what way did they fail to conduct inquiries as to the real situation of his claim, or what bias or formulistic approach did they use in assessing relocation or the risk he may face in his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, while his complaint that his appeal was rejected by the Board without any reasonable ground is plainly incorrect when it clearly set out in details its reasons for rejecting his appeal as set out in paragraphs 32 – 57 of its decision. As such I do not find any of his proposed grounds reasonably arguable for his intended challenge.

14.  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.

15.  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 32 – 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 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.  

16.  The fact is that it has been 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.     

17.  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.

18.  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