YASIR MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2322/2018

[2021] HKCFI 3406

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2322 of 2018

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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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 36-year-old national of Pakistan who entered Hong Kong illegally on 4 May 2016 and surrendered to the Immigration Department on 11 May 2016 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 the political party Pakistan Muslim League (N) (“PML(N)”) as he supported their rival Pakistan Tehreek-e-Insaf (“PTI”) and refused to join PML(N).  He was subsequently released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Village Fatu Chak, Attock, Punjab, Pakistan.  After leaving school he worked as a farmer in his home village, and supported PTI by regularly posting the party’s posters and banners in the neighborhood. 

3.  One day in about 2015 while he together with some fellow PTI supporters were posting their party’s posters in the street of their village, they were confronted by a group of PML(N) supporters who demanded that they stopped doing so and to instead join their party, and when the Applicant and his fellow PTI supporters refused, they were attacked by those PML(N) supporters with wooden sticks that the Applicant suffered injuries which required medical treatments at the local clinic. 

4.  After that incident, and as the threats and harassments from those PML(N) supporters persisted, the Applicant became concerned for his own safety and took shelter in his uncle’s place in Lahore, but when he later heard that those PML(N) supporters were still looking for him everywhere, he felt that it was no longer safe to remain in Pakistan, and so on 14 April 2016 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 31 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

5.  While being released on recognizance pending determination of his claim, the Applicant was arrested by police on 28 September 2017 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 15 months.              

6.  By a Notice of Decision dated 5 March 2018 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”).

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 those local PML(N) supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, given that the Applicant was just a supporter without any official position in PTI that there is no evidence or reason for the PTI people to specifically target him for political reason, that in any event 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 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 part of Pakistan away from his home district in large cities such as Lahore where he had stayed before without incidents and where it would be difficult if not impossible for him to be located.

8.  On 13 March 2018 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 30 August 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 15 October 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 may have been threatened and attacked by some local PML(N) supporters over political differences which caused him to be concerned for his safety, but found no evidence or reason for those local PML(N) supporters to target him for harm given that he was just an ordinary supporter of PTI with no official position in the party, and that in any event in the absence of any official involvement that state/police protection would be available to him upon his return to Pakistan as well as reasonably internal relocation for him to safely move to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.        

10.  On 23 October 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 put forth the following grounds for his intended challenge:

(1)        that the Director and the Board reached their decisions wrongly in assessing the Applicant’s non-refoulement claim in that they were both unfair and unreasonable;

(2)        that the Board failed to give the Applicant sufficient time and chance to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3)        that Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which had led to an unfair outcome of rejecting his non-refoulement claim;

(4)        that the Director failed to take into account or to give enough weight to the fact that the Applicant was tortured at the behest of the state law enforcement agencies which rendered the state 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;

(5)        that the Director failed to take into account or give proper weight to those listed relevant COI which supported the Applicant’s aversion that the police in his home country would not be able to protect which showed a clear case of unfair attitude which is in itself enough to render the decision void;

(6)        that the Director failed to recognize that corruption and incompetence of the administration in the Applicant’s home country is still a very serious problem of which various human rights organizations had compiled reports which stated testament to the Applicant’s assertions; and

(7)        that the Director failed to attain high standard of fairness required by the Wednesbury test in the decision which should be considered unreasonable in the scope of public law.    

11.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations or supported by any evidence as to how they applied to his case or how the Director or the Board had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to apply high standard of fairness or to give the Applicant sufficient time or opportunities to provide his evidence for his claim or appeal, or in what way was state acquiescence relevant to his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, nor was he able to do so at the hearing of his application.  As such I do not find any of them reasonably arguable for his intended application, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge either.

12.  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. 

13.  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 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.                  

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