Aslam Muhammad v. Torture Claims Appeal Board

HCAL 2154/2020

[2021] HKCFI 505

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2154 of 2020

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 submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 50-year-old national of Pakistan who arrived in Hong Kong on 2 March 2016 with permission to remain as a visitor up to 9 March 2016 when he did not depart and instead overstayed, and on 15 March 2016 he surrendered to the Immigration Department and raised a non-refoulement 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)”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in District Gujranwala, Pakistan.  After leaving school he ran his import/export business in his home district, and joined the political party Pakistan Tehreek-e-Insaf (“PTI”) regularly attended their local meetings and rallies.

3.During the local election held in May 2015, the Applicant campaigned for the PTI candidate against the PML(N) candidate, during which on one occasion the PTI candidate together with his fellow supporters including the Applicant were attacked by a group of PML(N) supporters with weapons that two of PTI supporters were killed while both the PTI candidate and the Applicant were injured and were taken to the hospital for treatments.

4.After his discharge from the hospital, the Applicant heard that the PML(N) supporters had made false accusations against him and the PTI candidate to the police, and fearing for his life, the Applicant therefore fled with his family to the outskirt of Gujranwala, and from there he departed Pakistan on 1 March 2016 for Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 31 August 2018 with legal representation from the Duty Lawyer Service but failed to attend any scheduled screening interview before the Immigration Department without valid reason.     

5.By a Notice of Decision dated 19 September 2018 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 PML(N) supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that the Applicant had been targeted by the PML(N) supporters who were mainly going after the PTI candidate instead, 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 (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 205 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 areas of Pakistan away from his home district in large cities such as Faisalabad where it would be difficult if not impossible for those local PML(N) supporters to locate him.

7.On 2 October 2018 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 29 September 2020 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 16 October 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found discrepancies in the Applicant’s evidence as to his claim but accepted that he had been involved in some violent conflicts with the local PML(N) supporters during the election campaign who were however mainly targeting the PTI candidate and not the Applicant, and found in any event in the absence of any evidence of official involvement that state/police protection would be available to the Applicant upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.  

9.On 28 October 2020 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 stated that he does not agree with the decision but without putting forward any proper ground for his intended challenge.  As such and in the absence of any error of law or irrationality 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.

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 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, that there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

12.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.

13.Furthermore, the Applicant on 14 January 2021 filed an affirmation to request to withdraw his leave application as his problem is solved in his country.

14.In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that the basis of his claim no longer exists, I accordingly accede to his request and dismiss his leave application.

Dated the 26^th day of 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