Muzafar Iqbal v. Torture Claims Appeal Board

HCAL 655/2018

[2020] HKCFI 2204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 655 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 31-year-old national of Pakistan who entered Hong Kong illegally on 23 March 2009 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of rival political party Pakistan Muslim League (N) (“PML(N)”), and after his torture claim was rejected, he then raised a non-refoulement claim for protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Mohallah Gorsian, Jatlan, Tehsil and District Mirpur, Azad Kashmir, Pakistan.  After leaving school he depended on his parents and became a supporter of the political party Pakistan Muslim League (Q) (“PML(Q)”) regularly attended their local meetings and rallies.

3.During the national election in 2009, one day while he was putting up posters and banners for his party, he was approached by several PML(N) supporters to join their party, and when he refused, they threatened that they would kill him next time.

4.On another occasion in early 2009 while he and his fellow PML(Q) supporters were organizing a party meeting in Mirpur District, they were attacked by a group of PML(N) supporters with empty bottles thrown at them that one of which hit the Applicant in his left hand, and that he was punched several times, but he managed to flee from the scene without serious injury to hide in a friend’s place, but when he later heard that the PML(N) supporters were looking for him everywhere, he felt it was no longer safe to remain in Pakistan, and so on 10 March 2009 he departed for China, and from there he later sneaked into Hong Kong and raised his torture claim, but when that was rejected, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form on 8 January 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 29 June 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds other than torture risk but included risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 found no substantial grounds for believing that the risk of harm from those local PML(N) supporters upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that fights between supporters of rival political parties were common in Pakistan and there is no evidence that he had been specifically targeted by the PML(N) supporters, 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 199 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 to move to other part of Pakistan away from his home district in large cities such as Islamabad or Karachi or Lahore where it would be difficult if not impossible for those local PML(N) supporters to locate him.

7.By a Notice of Further Decision dated 13 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 11 July 2016, and for which he attended an oral hearing on 8 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 29 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found the Applicant’s evidence about his claim vague, evasive and inconsistent that it did not consider him to be a reliable witness or that his claimed events in Pakistan as believable, that there is no evidence or reasons for the PML(N) people to specifically target him being a lowly supporter of PML(Q) with no official post in the party, and that in any event with state or police protection as well as reasonable internal relocation within Pakistan for the Applicant to move safely to other area away from his home district without any risk of being located by his perceived enemies that his claim for non-refoulement protection failed on all applicable grounds.   

10.On 17 April 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, and in his supporting affirmation of the same date he merely repeated his claim that his life would still be in danger in his home country without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.  As such 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 for his intended challenge. 

11.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.

12.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 26 – 37 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.  

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 2^nd 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