Asif Muhammad Alias Choudhry Sohail Ahmad v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1264/2018

[2019] HKCFI 593

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1264 of 2018

BETWEEN

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 48-year-old national of Pakistan who last entered Hong Kong illegally in January 2007 and was arrested by police on 16 June 2009.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by his creditor for failing to repay his debt, and after his torture claim was rejected by the Immigration Department, he then lodged a non-refoulement claim for protection on the same basis.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Rawalpindi, Punjab, Pakistan.  After leaving school he worked as an electrician in Islamabad.  In about 1995 he intended to find work in Japan and made arrangements with an agent for the trip, for which he borrowed US$10,000 from a man in his home village GK who was a weapons dealer and an influential fellow supporter of the then ruling political party Pakistan Peoples Party (“PPP”), for which it was agreed that the loan was to be repaid within two years and failing which the outstanding debt would be repaid in double amount.

3.The arrangement for the applicant to travel to Japan via Hong Kong in December 1995 was however unsuccessful but when his entry into Japan was denied and he therefore overstayed in Hong Kong where he met and married a Filipino woman who then gave birth to their daughter.  He was subsequently arrested by police and was then repatriated to Pakistan in October 1996.

4.Two months later in December 1996 he took another trip arranged by his agent for Japan via Hong Kong, but when that was unsuccessful he again overstayed in Hong Kong until his arrest by the police in 2005, and for which he was convicted and served six months’ imprisonment before being repatriated to Pakistan later in the same year.

5.Upon returning to Pakistan the applicant kept away from his home village in Rawalpindi and instead stayed in Islamabad to avoid being pressed by GK for repayment of his loan, but on one occasion in January 2006 when he went to visit his mother in Rawalpindi, he ran into GK who was with some men who then assaulted him with kicks and punches that caused cuts and bruises all over his body with a broken tooth and a warning that they would kill him if he failed to repay the loan within two days.

6.As the applicant became fearful for his life, he went into hiding and borrowed some money from his father to pay to an agent to help him to leave Pakistan again, which he did in April 2006 but this time he went to China, and from there he later sneaked into Hong Kong in January 2007 until his arrest two years later in June 2009 when he then lodged his torture claim, and after it was rejected by the Immigration Department, he absconded from recognizance until 24 March 2017 when he was arrested by police when he then raised his non-refoulement claim, for which he obtained legal representation from the Duty Lawyer Service (“DLS”) and completed a Supplementary Claim Form on 4 October 2017, but when he twice failed to attend the scheduled screening interviews he was instead required to provide written answers to the list of questions raised by the Immigration Department, which he eventually did through DLS, in which he disclosed a further threat from the family of his former girlfriend in Pakistan who allegedly committed suicide after learning of his marriage in Hong Kong, and for which her family had sworn to take revenge against him upon his return to Pakistan.

7.By a Notice of Decision dated 24 November 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 (“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 all the relevant circumstances of the applicant’s claim and assessed the risk of harm from his creditor GK upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that his claim of risk of harm from the family of his former girlfriend as not credible, that in either case they were private personal disputes 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 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 work experience to move to other part of Pakistan away from his home district in large cities such as Lahore where it would be difficult if not impossible for GK or the family of his former girlfriend to locate him.

9.The applicant then lodged his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 27 March 2018 before the Board with legal representation from DLS during which he gave evidence and answered questions put to him by the adjudicator for the Board and with submissions made on his behalf by his lawyer.  On 13 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found the applicant evasive in answering questions put to him at the hearing, that his account was vague and lacking in particulars in relation to his assertion with quite a number of suspicious allegations and inconsistencies during the hearing and contradictions between what he said at the hearing and what was recorded in the hearing bundle that he did not convince the adjudicator to be a reliable witness or that this claim as believable, and that in any event he can always relocate to other part of Pakistan as there is no evidence that GK or the family of his former girlfriend would have the desire to go after him after all these years, or the ability or resources to locater him in such a large country with a large population. 

11.On 4 July 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 or in his supporting affirmation of the same date where he merely stated that he was not satisfied with the Board’s decision and repeated his claim that his life is in danger back home.

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an 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 the decision 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 Re Litoun Mounsy [2018] HKCA 537.

13.The adjudicator had had the benefit of hearing and evaluating the applicant’s testimony and answers to questions put to him at his appeal hearing, and was therefore entitled to arrive at the findings and conclusion of his credibility as a witness and as to his claim as set out in details in paragraphs 31 – 41 of the Board’s decision, in which the applicant has failed to identify any error or procedural unfairness or irrationality.  I am therefore unable to see any prospect of success in his intended challenge.  

14.Furthermore, the fact that it has been established by both the Director and the Board in their decisions 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.

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 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.

Dated the 8^th day of March 2019.

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