Ali Muhammad v. Torture Claims Appeal Board

HCAL 870/2018

[2021] HKCFI 926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 870 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 submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 28-year-old national of Pakistan who entered Hong Kong illegally on 13 May 2012 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 the Taliban for escaping from their training camp. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kotli Kalan, Saleh Khana, Mohallah Namwar Khel, District Nowshera, Pakistan. After leaving school he worked as a labourer in construction sites in his home district.

3.One day in 2010 some armed men came to his village claiming to be Taliban trying to recruit young men to join their jihad including the Applicant who however put up some excuses that he needed to discuss and consult his family and was therefore allowed to leave.

4.Afterwards the Applicant fled to the neighbouring Village Saleh Khana where he stayed for 2 years without incidents until one day in 2012 when he was abducted by the same Taliban men who brought him to their training camp in the mountains where he received trainings in the use of various weapons, but later when he heard that he and other recruits would be used to attack an army outpost near his home village, the Applicant made his escape from the camp and ran back to Village Saleh Khana and later to Peshawar City, but as he was still fearful for his life, he therefore departed Pakistan on 9 May 2012 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 August 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.While being released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 14 April 2014 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 14 months.     

6.By a Notice of Decision dated 18 February 2016 the Director of Immigration (“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 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 the Taliban upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that they were after the Applicant before he left Pakistan and that in any event after all these years that it is doubtful that they would still have any adverse interest in him, that the Taliban were branded as terrorists in Pakistan and have been weakened significantly over the years by the military actions launched against them by the Pakistani government that they would no longer pose any real threats against the Applicant when state or police protection would be available to him 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 young man with working experience to move safely to other part of Pakistan away from his home district or the main locations where the Taliban were still active to avoid any further threats from them.

8.By a Notice of Further Decision dated 9 March 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”).

9.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“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 11 April 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 11 May 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board accepted that the Applicant may have been targeted for recruitment by the Taliban but found that after all these years that it doubted that they would still have any adverse interest in him, that COI show that the Taliban have been weakened over the years by military actions launched against them that they are now mainly confined in the Federally Administered Tribal Areas (“FATA”) of Pakistan and parts of the Swat Valley, that state/police protection against terrorists would be available to the Applicant as well as reasonable internal relocation for him to move safely to other area away from his home district or the Taliban’s active areas without fear of any threats from the Taliban that his claim for non-refoulement protection failed on all applicable grounds.      

11.On 18 May 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 of fear of being harmed or killed by the Taliban but without putting forward any proper grounds 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.

12.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.

13.In the Applicant’s case, the fact is 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 away from the Taliban’s active areas, 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 8^th day of April 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