Hanif Muhammad v. Torture Claims Appeal Board

HCAL 1808/2018

[2021] HKCFI 2576

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1808 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 43-year-old national of Pakistan who entered Hong Kong illegally on 29 November 2007 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by a fellow villager over a land dispute between the villager and his father in his home village, and after his torture claim was rejected by the Immigration Department, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kot Hidayat, Bara Ghar, Nankana, Sheikhupura, Punjab, Pakistan where his father owned a piece of farmland upon which he used to assist his father in his farming.

3.One night in November 2005 some unknown men came to the front of the Applicant’s home firing shots into the air and scaring the Applicant and his family. On the next day his father revealed to him that a fellow villager by the name of Agfa who was a wealthy landowner wanted to buy his father’s farmland but when it was refused by his father, Agfa then made threats against his father and family including sending those armed men to fire shots outside their house.    

4.Fearing that his family would be harmed by Agfa and his men, the Applicant therefore moved out of his father’s house with his family to Lahore without any further encounter with Agfa or his men, but later in 2006 when he was informed by his father that Agfa had sent his men looking for him everywhere, the Applicant therefore departed Pakistan on 16 November 2007 for China, and from there he later sneaked into Hong Kong and raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 19 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 30 November 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 Agfa or his men upon his return to Pakistan as low due to the absence of any past ill-treatment from them, that it was a personal land dispute between Agfa and his father with nothing to do with the Applicant and that his father was still alive and safe in his home village without any harm from Agfa all these years since his departure that it is doubtful that Agfa would still have any adverse interest in him, 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 202 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 part of Pakistan away from his home district in large cities such as Lahore where he had stayed before without incidents and where it would be difficult if not impossible for Agfa to locate him.

7.On 14 December 2017 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 19 April 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 7 August 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found numerous inconsistencies and discrepancies in the Applicant’s evidence that it did not consider him to be a witness of truth and doubted the credibility of his claim, and that in any event even if there was indeed a land dispute between his father and Agfa that it has nothing to do with the Applicant, and the fact that his father is still alive and safe in his home village without any incidents all these years that it did not accept that the Applicant will face any harm from Agfa over any land dispute between him and his father upon his return to Pakistan that it concluded that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.  

9.On 3 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, and in his supporting affirmation of the same date he just stated that he rejects the decision as it disregarded his dangerous situation without putting forth any proper ground 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 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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 36 – 50 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.  

12.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 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.

13.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.

14.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 1^st day of September 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