Amin Muhammad v. Torture Claims Appeal Board and Another

HCAL 2156/2018

[2020] HKCFI 2062

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2156 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 48-year-old national of Pakistan who entered Hong Kong illegally on 17 October 2015 and was arrested by police on 27 October 2015. 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 certain local Shia Muslims for religious reasons and/or by those smugglers who arranged for him to come to Hong Kong to work for them as a slave.  He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised as a Sunni Muslim in Village Chak, Jaranwala, District Faisalabad, Punjab, Pakistan where there were frequent conflicts between the local Sunni and Shia Muslims, and on one such occasion in November 2012 when the Applicant saw violent attacks on his fellow Sunni Muslims by the Shia Muslims with weapons causing severe injuries amongst many local villagers, and although he managed to flee from the scene unharmed, he was traumatized by the violence he had witnessed, and when he later heard that those Shia Muslims were looking for him, he fled to hide in another town before eventually returning to his home village in Jaranwala.

3.However, as he was still fearful for his safety, he therefore paid some agents to arrange for him to leave Pakistan for China, which he did on 29 September 2015, but he was later smuggled by the agents into Hong Kong where he was forced to work as their slave until his arrest by the police when he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

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

5.By a Notice of Decision dated 19 September 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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local Shia Muslims or those people who smuggled him into Hong Kong upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence that he had been specifically targeted by those local Shia Muslims, that in the absence of any official involvement that state 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 770,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other area away from his home district in large cities such as Islamabad or Karachi where it would be difficult if not impossible for his perceived enemies to locate him.   

7.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 21 June 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 3 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found the Applicant’s evidence of his claim vague, inconsistent and implausible and rejected his claims of being pursued by those local Shia Muslims or those people who smuggled him into Hong Kong as unreliable and incredible, and concluded that he had fabricated those claims so as to create a basis upon which to apply for non-refoulement protection that his claims failed on all the applicable grounds.

9.On 8 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 in his supporting affirmation of the same date he put forward various grounds for his intended challenge which can be summarized as follows:

(1)     lack of legal representation in his appeal before the Board;

(2)     lack of language assistance to enable him to have a better understanding of the contents of the decision of the Director or of the various documents in the hearing bundle for his appeal before the Board;

(3)     wrongful exercise of case management power by the Director by using a biased formulaic approach in coming to the conclusion that state protection would be available to the Applicant as a result of improper assessment of the relevant COI;

(4)     failure on the part of the Director and the Board to apply high standard of fairness in their consideration of his non-refoulement claim; and

(5)     failure to read or translate the Board’s decision to the Applicant thereby depriving him of the opportunity of knowing the reasons behind the rejection of his claim and to make proper application for judicial review of that decision.   

10.For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

11.The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

12.As for his complaint under Ground (2) of not being provided with language assistance regarding the Director’s decision and other documents in his hearing bundle for his appeal before the Board, the fact is that he was still represented by DLS when the Director’s decision was delivered, while other documents in his hearing bundle such as his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any such issue, and in the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

13.Regarding his complaints in Grounds (3) and (4) of wrongful exercise of case management, biased approach and failure to apply high standard fairness in their assessment of his claim by the Director and the Board, they are all vague and bare assertions without any particulars or specifics or elaborations as to why they are considered so.  As such I do not find either of them reasonably arguable for his intended challenge.   

14.As for his complaint under Ground (5) that the Board’s decision had not been explained to him to enable him to have a better understanding of the reasons for rejecting his claim, that cannot per se be accepted as a proper or valid ground to challenge the decision, and is also rejected as not reasonably arguable. 

15.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

16.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 43 – 62 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing before the Board, 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 finding of the Board.

17.Furthermore, the fact is 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.     

18.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.

19.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 24^th day of August 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