Khan Muhammad v. Torture Claims Appeal Board and Another

HCAL 2118/2018

[2020] HKCFI 2123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2118 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 34-year-old national of Pakistan who entered Hong Kong illegally on 21 December 2015 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 some local supporters of rival political party Pakistan Muslim League (N) (“PML(N)”) for refusing to join their party.  He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Village Tania Wala, District Jhelum, Punjab, Pakistan.  After leaving school he worked as a farmer before starting to run his own store selling motorcycle parts, and became a supporter of the political party Pakistan Tehreek-e-Insaf (“PTI”) regularly attended their local rallies and meetings.

3.In early 2015 some local PML(N) supporters started to demand that he joined their party, and when he refused, they constantly threatened and harassed him, and after one such instance when they came to his shop to break things and beat him with wooden sticks, he fled to Lahore, and when he heard that those AL supporters were looking for him everywhere, he felt it was no longer safe to remain in Pakistan, and so on 17 December 2015 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 9 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.By a Notice of Decision dated 26 October 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”) 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”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by those local PML(N) supporters upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that it was a common conflict between local supporters of rival political parties without any real intention to cause serious harm between them, 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 207 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 area of Pakistan away from his home district in large cities such as Islamabad where it would be difficult if not impossible for those local PML(N) supporters to locate him.   

6.On 7 November 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 28 June 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board during which he changed his claim to one based on threats made by his neighbor who was a PML(N) member and who accused him of interfering in a land dispute between the neighbor and the Applicant’s father which he had never before mentioned to the Director in his earlier claim.  On 24 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found it incredible and unreliable that the Applicant had never raised the threats from his neighbor over the land dispute before to the Director in his claim, and formed the view that he had embellished and exaggerated his claims in relation to his claimed fear of harm from the neighbor or the local PML(N) supporters, that even if his claim of threats from his neighbor were true that it was a private dispute between the neighbor and his father over a piece of land in his father’s name that it is not accepted there is any real intention on the part of the neighbor to harm or kill him, that reliable COI show that PTI has since won the general election and become the ruling power that it is doubtful that he would face any such threats from the neighbor or from any PML(N) supporters, that in any event in the absence of any evidence of any state or official involvement in either claim that state/police protection would be available to the Applicant that his claim for non-refoulement protection failed on all applicable grounds.       

8.On 4 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 summarized as follows:

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

(2)     lack of legal assistance for not providing him with a translation of the Board’s decision so that he could better understand his case;

(3)     wrongful exercise of case management power on the part of the Board by putting too much weight on those COI which did not reflect the true situation in Pakistan; and

(4)     wrongful assessment of the COI on state protection and internal relocation in Pakistan in the determination of the Applicant’s claim.   

9.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.

10.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.  As such 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.

11.As for his complaint under Ground (2) of not being provided with a translation of the Board’s decision for him to have a better understanding of his case, which even if true cannot be a proper ground to challenge the Board’s decision.

12.Regarding his complaint in Ground (3) over the Board’s reliance of COI in its assessment of the situation in India, the Applicant has failed to provide any particulars or specifics in support of this complaint, and upon examination of those COI referred to in paragraphs 15 – 17 of the decision of the Director as well as those considered by the Board, I do not find any basis in this complaint of the Applicant.

13.As for his complaint under Ground (4) regarding improper reliance by both the Director and the Board on the relevant COI for their assessment of state protection in Pakistan, upon close scrutiny I found both to have conducted a proper balancing exercise in their assessment of the effectiveness and efficiency of the Pakistani police before arriving at their such conclusion, and in the absence of any error of law or facts in their assessment being clearly or properly identified and elaborated by the Applicant, I do not find any basis or merit in this complaint of his either.    

14.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.

15.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 70 – 102 of its decision and with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, 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.  

16.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.     

17.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.

18.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 September 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