Tahir Muhammad v. Torture Claims Appeal Board and Another

HCAL 2186/2018

[2020] HKCFI 2063

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2186 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 35-year-old national of Pakistan who entered Hong Kong illegally on 15 February 2014 and was arrested by police on 14 March 2014. 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 Muslims religious extremists for consuming alcohol and engaging in unruly conducts unbecoming of being a Muslim in his home village.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Saleem Khan, Tehsil Hazro, District Attock, Punjab, Pakistan where he ran a restaurant to make a living.

3.In 2013 he started hanging out with a group of boys in his area affiliated with some political party during which he had consumed alcohol with them and engaged in unruly manner in the village.

4.A few months later he was warned by his brother to stay away from the group as the local religious people considered he had been acting wrongly by drinking alcohol.  Soon he found himself being stared and shouted at by some religious extremists, and when he started receiving threats from them, he became concerned for his safety that he fled to Karachi, and on 3 December 2013 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 21 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 9 February 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 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”).

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 religious people upon his return to Pakistan as low due to the absence of any past ill-treatment from them, that his alleged fear of harm are based mainly on his bare assertions and hearsay without any reliable evidence, that 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 show that reasonable internal relocation alternatives are available in Pakistan with a large population of 201 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 or Karachi where he had stayed before without incidents and where it would be difficult if not impossible for those local religious people to locate him.

7.On 21 February 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 22 June 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 20 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 incoherent and that he was unable to provide any details whatsoever of his account or to explain the various differences in his account given to the Director and to the Board that it concluded that his account was simply fabricated and no credence whatsoever could be attached to it that his claim for non-refoulement protection failed on all applicable grounds.

9.On 10 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, but no ground for seeking relief was given in his Form in which he merely repeated his claim that his life would be in danger in his home country for religious reason, and in his supporting affirmation of the same date he simply claimed that their decisions were unreasonable as they failed to consider all the matters raised in his claim but without providing any particulars or elaborations as to how they failed to do so, nor did he do so at the hearing of his application, while his written submission dated 30 December 2019 is another regurgitation of his claim with citation of some general legal principles but without any elaboration as to their relevancy to his case.  As such I do not find any reasonably arguable basis for his intended challenge.      

10.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.

11.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 21 – 29 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.  

12.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.     

13.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.

14.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