Mumtaz Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2270/2018

[2021] HKCFI 213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2270 OF 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submission by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1978, is a national of Pakistan.  On 6 May 2015 he surrendered himself to the Immigration Department claiming to have entered Hong Kong illegally by boat from China on 1 May 2015.  On 27 May 2015 he was released on recognizance and he subsequently withdrew his non-refoulement claim dated 20 July 2016.  The applicant later submitted a written representation dated 14 December 2016 to reopen his non-refoulement claim.  His application was reactivated from 15 February 2017.  The Director rejected his non-refoulement claim on 31 July 2017.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [10-25] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by people from the Pakistan Muslim League (“PMLN”) and that he will be arrested by the police if he returns to Pakistan.  The applicant claimed that he started to support the Pakistan Awami Tehreek (“PAT”) in around 2013.  His position or title was “worker”.  He encouraged people to vote for PAT in the elections and he attended meetings and rallies of PAT.  On 16 June 2014 he went to Model Town to prepare for a protest against PMLN.  People from PMLN turned up with police and gangsters and tried to stop those organising the protest.  They were attacked by tear gas and wooden sticks.  The police fired gunshots at the PAT supporters.  Many people were injured and a friend of the applicant was killed.  The applicant was able to escape unharmed.  On 31 August 2014 he attended another protest.  Police and gangsters attacked those in attendance.  The applicant was hit and sustained a fractured left foot and fractures to his fingers.  In early 2015 he was arrested by the police who threatened that he would be charged with criminal damage, assaulting the police, and having attended the protests against the government.  He was detained and assaulted by the police.  He was released after his family members offered a bribe to the police.  About 15 days later he was again arrested by the police.  He was warned not to participate in any political activities.  He was again released after his family members bribed the police.  In fear of his safety he decided to leave Pakistan.  He claimed that his friend bribed the Pakistan immigration to enable him to leave from Islamabad airport for China on 20 April 2015.  In July 2016, he was told that his family members were trying to settle problems with the police.  As he missed home, he decided to withdraw his non-refoulement claim.  When their efforts failed, he asked for re-opening of his claim.  The applicant also claimed that he would be denied a fair trial.

The Director’s decision

4.By a notice of decision dated 31 July 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low.  He found that state protection is available to the applicant and internal relocation is a viable option for him.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.The applicant attended a hearing before the Board on 15 May 2018.

6.By a decision dated 10 October 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claimat paragraphs [80-114] of its decision.  In a nutshell, the Board concluded that the applicant was partly credible, and partly not credible as a witness.  It accepted that the PAT is one of the minor political parties in existence in Pakistan and that there was a violent incident at Model Town in June 2014 as claimed by the applicant.  While the Board accepted the applicant was an ordinary member of PAT and that he attended rallies and protest meetings in that capacity, it did not accept that the applicant was perceived as a leader or activist in the PAT, or a threat to the PMLN.  He was not seriously harmed in the activities.  It did not find the applicant has a profile as anything more than an ordinary member of PAT.  It was not satisfied on the evidence that the applicant held any significant or leadership role in PAT.  The PAT is only one of a number of very minor political parties in Pakistan.  Having regard to the applicant’s level of activities with PAT, and to the relatively minor status of the party in the Pakistan political scene over all, the Board did not accept that the applicant would be targeted for harm for reasons of his political opinion or for reasons of his support for, or activities with, the PAT now or in the reasonably foreseeable future.  The Board did not find that the applicant is a person of adverse interest to the PMLN, or to anyone else.  The Board did not accept that the applicant would be denied a fair trial in Pakistan.  On the COI before it, it was satisfied that the applicant could avail himself of legal assistance and effectively defend a charge and such a charge will be given a fair trial in the relevant jurisdiction of court in Pakistan.

8.The Board took into account the fact that the applicant did not seek protection on the mainland before he came to Hong Kong and the fact that he withdrew his non-refoulement application before.  It found that the reason of the applicant deciding against returning to Pakistan was not for reasons of facing a real risk of serious harm or death were he to so return.  The board did not accept his claims that he would be targeted for harm by members of the PMLN, or by the police, or by anyone else not or in the reasonably foreseeable future if he returns to Pakistan.  There is no reason for the applicant to fear any kind of harm, and the suggestion of any risk to the applicant in his circumstances is far-fetched and fanciful.

9.Having considered all the evidence and circumstances relied on by the applicant, the Board found that the applicant would not be at real risk of any types of the proscribed harm, if refouled.

10.Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

11.The applicant filed a Form 86 on 19 October 2018 for leave to apply for judicial review of the decision of the Board.

12.No request for oral hearing has been made.  The application is therefore considered on the papers.

13.In the affirmation in support of his application, he said he did not agree with the decision of the Board.  He also attached with it a four-page well typed document of his complaints.  In essence, he stated his fear that if he returns to Pakistan he will be “ill treated and killed by the most prominent political party goons of Pakistan”.  He repeated his past experiences and explained why he had withdrawn his non-refoulement claim before and later applied to reopen his claim.

Discussion

14.The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

15.When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

16.In the present case, the Board found the applicant’s accounts and claims partly credible and partly incredible.  It accepted his claims of involvement in the activities of PAT.  However, having regard to its assessment of the applicant’s level of activities and the minor status of his party in the Pakistan political scene over all, it did not accept that the applicant would be targeted for harm or that he is a person of adverse interest to the PMLN, or to anyone else.  Based on the objective COI before it, it also did not accept that the applicant would be denied a fair trial in Pakistan.  The Board properly in my view took into account the fact that he did not seek protection on the mainland before he came to Hong Kong and the fact that he had withdrawn his non-refoulement application before.  Having carefully considered all the evidence before it, the Board found the suggestion of any risk to the applicant in the circumstances “far-fetched and fanciful”.

17.As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

18.The applicant mentioned nothing in the 4-page complaints attached to his affirmation to suggest how the Board erred in the public law sense.  It only contained a regurgitation of his claims and did not pinpoint any procedural irregularity, unfairness or unreasonableness of the Board. 

19.In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

20.The Board, with the benefits of hearing the applicant’s oral evidence, rejected the non-refoulement claim mainly based on its adverse finding on the applicant’s credibility about his claimed fear with detailed reasons.  The Board was entitled to come to such a finding on the evidence before it.  I do not find any reasonably arguable basis to challenge the findings of the Board.

21.Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

22.There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

23.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, irrational findings, or procedural unfairness in their decisions.  Nor do I see any failure on their part to apply high standards of fairness.

24.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

25.Accordingly, leave to apply for judicial review is refused.

Dated 2 February 2021

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