ASHFAQ MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 663/2018

[2020] HKCFI 2184

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 663 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 63-year-old national of Pakistan who entered Hong Kong illegally on 30 June 2015 and surrendered to the Immigration Department on 8 July 2015 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his brother-in-law who disapproved of him marrying his sister more than 30 years ago.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Kakra Town, Mirpur, Azad Kashmir, Pakistan.  After leaving school he worked as an electrician and later ran his vehicle painting business.

3.  In 1986 he married his wife from his same home district much to the displeasure of her elder brother who preferred that she married his cousin, and as a result his brother-in-law had been very hostile towards the Applicant and had frequently made threats against him.

4.  One day in 2007 when the Applicant was alone in his home, someone set fire to his house during which he suffered severe burns to his limbs that he was hospitalized for more than 40 days.

5.  Upon his discharge from the hospital and although he did not see who set the fire to his house, he suspected that it was his brother-in-law as he had previously threatened to harm him including burning down his home, but he did not report the arson to the police as his brother-in-law was an influential person in the neighbourhood with political connections, and instead he fled with his family to Mirpur City, but as his brother-in-law continued to make threats against him, the Applicant felt it was no longer safe to remain in Pakistan, and so on 3 April 2015 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 on 9 May 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 23 June 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”).

7.  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 brother-in-law upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence that it was his brother-in-law who set fire to his house other than his own speculation, that in any event it is doubtful that after all these years that his brother-in-law would still have any adverse interest in him, that it was a personal or family dispute between them without 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 show that reasonable internal relocation alternatives are available in Pakistan with a large population of 202 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 his brother-in-law to locate him.

8.  The Applicant then 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 1 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 20 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted that the Applicant had suffered severe burns when a fire occurred in his home but found no reliable evidence that it was caused by his brother-in-law other than his own speculation, and even if his brother-in-law had been hostile to him there is no evidence of any previous ill-treatment directed against the Applicant other than verbal threats that it is doubtful that his brother-in-law would have any real intention to harm him during all those years, that in any event it was a private personal dispute between them without any official involvement that state or police protection would be available to the Applicant that his claim for non-refoulement protection failed on all applicable grounds.     

10.  On 18 April 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 he merely repeated his claim that he cannot go back to his home country as his life is not safe there, and that he be allowed to stay in Hong Kong until his problem is solved but without putting forward any proper ground for his intended challenge.  Nor did he request any hearing for his application. 

11.  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.

12.  In the Applicant’s case, the Board rejected his claim essentially on its findings that whatever threats from his brother-in-law without any official involvement would not come under any of the applicable risks for non-refoulement protection and that state/police protection would be available to him to reduce or negate any such risk for the thorough and detailed analysis and reasoning set out in paragraphs 31 – 46 in 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 findings of the Board.  

13.  Furthermore, the fact that it has been established by the Director in his 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, 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.     

14.  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.

15.  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