Waheed Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 286/2018

[2020] HKCFI 469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 286 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Pakistan who entered Hong Kong illegally on 20 February 2016 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 uncle and/or cousins over certain land and political disputes.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Saleem, Khan, Tehsil Hazro, District Attock,Pakistan. After leaving school he worked in various odd jobs in Pakistan, Saudi Arabia and Dubai.  He also became a supporter of the political party Pakistan Tehreek-e-Insaf (“PTI”).

3.The Applicant’s father and uncle had inherited certain land from his grandfather in their home village which had become a constant dispute between their families over the distribution of the land as his uncle always demanded for a bigger share, and that his sons,who were all supporters of rival political party Pakistan Muslim League (N) (“PML(N)”),would always use their different political views to create conflicts with the Applicant and his family, and had on occasions even attacked him with wooden sticks that caused fear and injuries to him and drove him in later years to leave Pakistan to work in Saudi Arabia and Dubai in order to avoid their threats and harassments.

4.In June 2014 when the Applicant returned to Pakistan, he stayed away from his home village instead in Rawalpindi and Karachi, but when PTI lost the subsequent general election which was won by PML(N), his cousins started to resume their harassments againsthim and even threatened to kill him for supporting the wrong party, the Applicant thereforebecame concerned for his own safety and again departed Pakistan on 14 February 2016 for China, and from there he sneaked into Hong Kong, and upon his arrest he raised his non- refoulement claim for protection, for which he later completed a Non-refoulement Claim Form on 5 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 6 July 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”).

6.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that his fear of being harmed by his cousins upon his return to Pakistan is real or substantial when he had been away all these years and in the absence of any independent and reliable evidence of such threats from the cousins, that in any event these were private family 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 withwork experience to move to other part of Pakistan away from his home district in large citiessuch as Islamabad where it would be difficult if not impossible for his cousins to locate him.

7.On 11 July 2017 the Applicant 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 27 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 2 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found discrepancies and inconsistencies in the Applicant’s evidence that casted doubts on the credibility of his claim, and found in any event that it would not be unduly harsh for him to relocate to other parts of Pakistan such as Hyderabad where he would not be subjected to any of his perceived fear from his uncle or cousins that his non-refoulement claim failed on all applicable grounds.

9.On 22 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)     irrationality in failure to consider the concept of state acquiescence;

(2)     procedural impropriety in making insufficient inquiry;

(3)     failure to provide adequate reasons as to decision made;

(4)     procedural impropriety/unfairness in failure to investigate into Country of Origin Information of Pakistan;

(5)     irrationality in failure to place weight on relevant information and/or selectively placing weight on irrelevant information;

(6)     irrationality in failure to consider a consistent system of human rights violations;

(7)     irrationality in failure to consider if state protection exists in Pakistan;

(8)     irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(9)     procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations;

(10)     procedural impropriety in applying the incorrect standard of proof;

(11)     no reasonable basis for rejecting the credibility of his claim;

(12)     failure to consider the extended form of state acquiescence;

(13)     failure to fully consider the COI reports in assessing risk to the applicant;

(14)     irregularity of the decision-maker being a different person than the interviewing officer; and

(15)     no proper basis for consideration of internal relocation.  

10.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 as to how they applied to his case or how the Board or the adjudicator had erred in the decision,or why would the concept of state acquiescence be relevant to his claim, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or how did the Board fail to apply the correct test on credibility, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.

11.As for his complaint that his appeal before the Board was not heard by the same immigration officer, I fail to see the rationale for requiring it to be heard by the same person,as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness.  As such there is simply no basis or merits in this complaint of the Applicant either.

12.For the reasons given, and in the absence of any error of law or procedure in the Board’s decision shown by the Applicant,I do not find any of his grounds reasonably arguable for his intended challenge.  As has been repeatedly emphasized by the Court of Appeal,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 being 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.Furthermore, the fact that it has been established by both the Director and the Board in their respective 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, 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.

Dated the 1^st day of June 2020.

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