Ajmal Muhammad v. Torture Claims Appeal Board

HCAL 1069/2018

[2020] HKCFI 2342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1069 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:

1.  the Application for Leave to Apply for Judicial Review be reinstated; and

2.  leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The Applicant is a 52-year-old national of Pakistan who entered Hong Kong illegally on 17 March 2014 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 a former customer for refusing to carry illegal drugs for him.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Firdaus Park, Baghban Pura, Lahore, Pakistan.  After leaving school he ran his own auto parts wholesale business in Lahore for a living.

3.One day in March 2010, one of his customers Sabir came to his shop with several men to accuse him of taking his money without delivering the goods, and demanded that in lieu of a full refund the Applicant should carry illegal drugs for him, and when the Applicant refused, Sabir and his men proceeded to beat him violently and then left.

4.After the incident and fearing further assaults, the Applicant closed down his shop and hid in his home most of the time, but one day in late 2011 while he was on his motorbike on the way home, he was struck by a vehicle driven by Sabir’s men and fell and fractured his right leg which required hospitalization for several days.

5.Upon discharge from hospital, the Applicant fled to Oman in early 2013 to hide from Sabir where he stayed for 6 months without incident before returning to Pakistan in August 2013, but as he still felt it was not safe to remain in Pakistan, he therefore departed on 13 March 2014 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 29 August 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 19 February 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), 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”).

7.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 Sabir and his men upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it was a private dispute between them 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 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 with working experience to move to other part of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for Sabir or his men to locate him.

8.By a Notice of Further Decision dated 19 May 2017 the Director again rejected the Applicant’s claim in the absence of any 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”).

9.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 3 March 2016, and for which he attended an oral hearing on 5 February 2018 with legal representation from DLS before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board and with submissions made on his behalf by his lawyer.  On 30 May 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found any threats allegedly from Sabir against the Applicant arose from a private personal dispute between them, that after all these years it is doubtful that Sabir would still have any adverse interest in him, and that in any event in the absence of any official involvement that state/police protection would be available to him upon his return to Pakistan that it concluded that his claim for non-refoulement protection failed on all applicable grounds.   

11.On 11 June 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) that there was no reasonable basis for rejecting the credibility of his claim;

(2) that it failed to consider the extended form of state acquiescence;

(3) that it failed to fully consider the COI reports in assessing risk to the Applicant;

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

(5) procedural impropriety/unfairness in failing to investigate into COI of Pakistan;

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

(7) irrationality in failing to consider a consistent system of human rights violations;

(8) irrationality in failing to consider if state protection exists in Pakistan;

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

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

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

(12) failure to provide reasonable basis for rejecting the Applicant’s claim; and

(13) no proper basis for the consideration of internal relocation.     

12.However, before his application could be dealt with by the court, the Applicant on 3 October 2019 wrote to request that his application be withdrawn, and on 25 October 2019 his request was accordingly granted, but on 15 July 2020 the Applicant wrote to request to “re-open” his application as his problem back home has worsen and that he wants to proceed with his application.

13.Given the fact that his application has never been properly determined, and to save time and costs, I allow the Applicant’s request and proceed to consider his above proposed grounds for his intended challenge.

14.However, they all appear to me standard pro forma grounds commonly used in this type of applications, with most of which not really relevant to the facts of his claim, and are just broad and vague assertions 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 what relevancy was the extended form of state acquiescence to his case, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or how did the Board apply the incorrect standard of proof in assessing the credibility of his claim.

15.None of these assertions of the Applicant were elaborated or presented with any particulars or specifics by the Applicant, and I fail to see how he could have been prejudiced or adversely affected by having his appeal before the Board heard by someone different from his interviewing immigration officer whose decision is in fact against him, and that the mechanism for his appeal as a rehearing of his claim before a different person is actually a safeguard for fairness.  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.  

16.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.

17.In the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in his 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 21^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