IRFAN MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 3835/2019

[2023] HKCFI 3298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 3835 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 48-year-old national of Pakistan who entered Hong Kong illegally on 26 June 2019 and was arrested by police on the same day. 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 his cousin over their land dispute in their home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Daman, District Attock, Punjab, Pakistan. After leaving school he worked as a farmer on his father’s farmland in their home village, got married and raised a family with 4 children.

3.  In 2018 he inherited his father’s farmland where he continued to farm to support his family, but in early 2019 his cousin approached him to offer to buy his farmland, and when he declined to sell, his cousin was furious and made threats against him.

4.  One night in May 2019 his cousin came to the Applicant’s home and threatened his mother and family at gun point that if the Applicant still refused to sell the farmland to his cousin, he would be killed.

5.  Upon returning home and being told of his cousin’s threats, the Applicant fled to Attock City to take shelter in his aunt’s place, during which he was later informed by a friend that 3 unknown men had come to his home village looking for him.

6.  The Applicant suspected that those men were sent by his cousin to kill him and decided it was no longer safe to remain in Pakistan, and so he fled to Islamabad to make arrangements to leave the country, and on 22 June 2019 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 1 August 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 29 August 2019 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of him being harmed or killed by his cousin upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from his cousin, that there is no evidence of any real intention of his cousin to seriously harm or kill him or that his cousin had sent hitmen to kill him other than his own speculation, that in any event it was a private land dispute between the 2 of them in the family 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 (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 207 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 areas of the country away from his home district in large cities such as Islamabad where he had stayed before without incidents and where it would be difficult if not impossible for his cousin to locate him.

9.  On 9 September 2019 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 26 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 19 December 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim that it doubted his claim of fear of harm from his cousin that caused him to leave his country to come to Hong Kong for protection, and that in any event if such risk were real that it arose from a private land dispute between the 2 of them within their family without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 23 December 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Adjudicator reached the decision wrongly in assessing the Applicant’s non-refoulement claim in that the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his right to life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2)  That the Board failed to appreciate or give proper weight and importance to the presence of State Acquiescence in the Applicant’s case which led to the unfair outcome of rejecting his non-refoulement claim;

(3)  That the Board failed to take into account of the fact that the Applicant was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(4)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account;

(5)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give enough weight to such evidence and instead ruled otherwise against the Applicant’s case;

(6)  That the Board failed to take into account the Applicant’s argument that corruption and incompetency of the administration in his country is still a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s assertions that the Board failed to attain high standard of fairness required by the Wednesbury test that the decision should be considered unreasonable in the scope of public law;

(7)  That the Adjudicator was procedurally improper and/or unfair when assessing whether or not to accept explanations provided by the Applicant and unreasonably required the Applicant to respond to questions that he was not in a position to offer any response;

(8)  That the Adjudicator failed to take into account the nexus of political parties and official corruption which exists in the Applicant’s country making persecution of the Applicant effectively persecution by the State; and

(9)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal/petition based on findings that the Adjudicator ought to allow the appeal/petition and thus the decision was irrational.

12.  These are however all just some vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaboration as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator place too much reliance on COI or wrongly apply them or that the Adjudicator act procedurally unfair or unreasonable, or what relevancy were State Acquiescence or extra-judicial killings or torture by state enforcement agencies or nexus of political parties or corruption to the Applicant’s case when on the factual basis of even his own case that it was a private family dispute between him and his cousin without any state or official involvement. As such I do not find any of these grounds reasonably arguable for the Applicant’s intended challenge, 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 merits in his intended application either.

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, 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 his claim if real 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.

15.  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.

16.  For the reasons given I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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