MUDASSAR IJAZ ALIAS MUHAMMAD AFZAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 322/2018

[2019] HKCFI 2176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 322 of 2018

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 51-year-old national of Pakistan who first arrived in Hong Kong in 1992 as a visitor but overstayed and was subsequently repatriated to Pakistan in 1997,but he returned to Hong Kong on 25 May 1998 under a false passport and again overstayed until his arrest by the police on 29 December 2008, for which he was convicted and sentenced to prison for six months.  Upon his discharge from prison and was referred to the Immigration Department, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by a local bandit known as Akram for having witnessed him committed a murder, and after his torture claim was rejected, he raised a non-refoulement claim for 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 Village Karianwala, District Gujrat, Pakistan. After leaving school he helped out in his brother’s shop in the village.

3.  One day in February 1998 while travelling with a friend on a motorcycle, they were stopped by Akram, a notorious bandit in the local area, together with two of his followers,who then had a heated argument with the applicant’s friend over some dispute when Akram suddenly pulled a gun and shot dead the applicant’s friend and then fled from the scene before the police arrived.

4.  Fearing that Akram would come after him, the applicant refused to identify him to the police in their investigation. Several days later when he was in the village market, Akram approached him and warned him that he would kill him if he dared to talk to the police about the killing.

5.  However, as the police kept pressing him to identify the culprit of the murder and fearing that Akram would silence him by killing him, the applicant decided to leave Pakistan to save his life and departed on 24 May 1998 for Hong Kong where he subsequently overstayed until some ten years later when he was arrested by police on 29 December 2008 and was subsequently charged for illegally staying in Hong Kong and for using a false passport, for which he was subsequently convicted and sentenced to prison for six months.

6.  Upon discharge from prison the applicant raised a torture claim, and upon its rejection by the Immigration Department in 2014, he then raised a non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 5 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 24 June 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on then applicable grounds other than torture risk but including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from Akram to the applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, 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 199 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 work 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 Akram or his men to locate him.

9.  By a Notice of Further Decision dated 14 July 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 4 July 2017, and for which he attended an oral hearing on 10 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board when he disclosed that Akram has since died from a heart attack in Pakistan while his followers no longer posed any threats.  On 12 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found the applicant’s revelation of Akram’s death had effectively removed any danger to him, and that in any event both state protection and reasonable internal relocation within Pakistan would be available to the applicant that his non-refoulement claim for protection failed on all applicable grounds.

12.  On 28 February 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 and his subsequent written submission of 10 August 2018 he merely repeated his claim that his life would be in danger in his home country and pleaded that he be allowed to stay in Hong Kong as he has since married a local resident.  As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.  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. 

14.  In the applicant’s case, even accepting his own case at the highest, and as correctly found by the Board, the fact of Akram’s death has effectively put an end to any real or substantial risk of any harm to the applicant upon his return to Pakistan, and of which I am unable to see any prospect of success in challenging such finding by the Board.

15.  Furthermore, whatever remaining risk of any harm from Akram’s followers, as established by both the Director and the Board in their respective decision that such risk is a localized one and that it is not unreasonable or unsafe for the applicant 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.

16.  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.

17.  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