Islam Muhammad v. Torture Claims Appeal Board

HCAL 2060/2018

[2021] HKCFI 1969

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2060 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 29-year-old national of Pakistan who entered Hong Kong illegally on 13 February 2016 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 fellow villager over a land dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in the Meatai Mahmand Tribal Area, Pakistan where he worked as a farmer on his family’s farmland in his home district.

3.One day in 2005 while he and his brothers were working on their farmland, a fellow villager Torsam who claimed to have connections with terrorists based in the Tribal Area came with some armed men, beat up the Applicant and his brothers and drove them away, and took over possession of their farmland.

4.Fearing for their lives, the Applicant and his family moved to Hazro, but later in 2007 when he together with his father and brothers returned to the Tribal Area to check on their farmland, they found that it was still being occupied by Torsam who together with his men then beat them up and threatened to kill them if they dared to return, and so the Applicant and his family returned to Hazro, but when Torsam in 2008 sent his men to Hazro to make threats against him and his family, and thereafter made threatening phone calls to him every month for years, the Applicant felt it was no longer safe to remain in Pakistan, and so on 11 February 2016 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 February 2018 with legal representation from the Duty Lawyer Service (“DLS”) but did not attend the scheduled screening interview before the Immigration Department for the alleged medical reason.     

5.Whilst being released on recognizance pending determination of his claim, the Applicant was arrested by police again on 25 October 2017 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 15 months.

6.By a Notice of Decision dated 26 April 2018 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 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”).

7.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by Torsam or his men upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that Torsam has already taken over the land from the Applicant’s family for so many years and with the Applicant and his family having moved away for so long that there is no reason to have any further adverse interest in the Applicant after all these years, that in any event 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”) shows that reasonable internal relocation alternatives are available in Pakistan with a large population of 204 million people spread across a vast territory of more than 770,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other parts of Pakistan away from his home district in large cities such as Islamabad or Karachi where it would be difficult if not impossible for Torsam to locate him.

8.On 7 May 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 9 August 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 6 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence between those given to the Director and those in his appeal hearing before the Board as to his alleged threats and ill-treatments inflicted by Torsam on him and his family that it found him not a witness of truth, that it was not satisfied that he had told the truth in relation to the land dispute with Torsam and his men, and that it did not accept that he and his family had been threatened or attacked by Torsam or his men as alleged or that he had left his home and Pakistan for the reason as claimed or that he will face any risk of harm from anyone upon his return to Pakistan that it concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.

10.On 27 September 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 or in his supporting affirmation of the same date other than just a sentence that he is not satisfied with the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

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 46 – 91 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 is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.

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 6^th day of July 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