Fayaz Muhammad v. Torture Claims Appeal Board

HCAL 2194/2018

[2021] HKCFI 2578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2194 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 51-year-old national of Pakistan who entered Hong Kong illegally on 27 November 2013 and surrendered to the Immigration Department on 10 December 2013 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he risked being harmed or killed by supporters of rival political parties. 

2.The Applicant was born and raised in Karachi, Pakistan. After leaving school he worked in various jobs, got married and raised a family of 7 children, and supported the political party Pakistan Muslim League (N) (“PML(N)”) regularly attended their local activities, but after both witnessing and experiencing numerous violent conflicts with supporters of other political parties, he began to focus on religious matters by joining the Islamic religious group Pakistan Sunni Tehreek (“PST”).

3.However, after a PST meeting in which he had participated was hit by a bomb, and although he was not injured, he felt it was no longer safe to remain in Pakistan, and so he departed on 6 July 2013 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 3 August 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

4.By a Notice of Decision dated 27 November 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then 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”).

5.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 his perceived fear upon his return to Pakistan as low due to the absence of any past ill-treatment inflicted on 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 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 adult with working experience to move to other part of Pakistan away from his home district in large cities such as Islamabad where it would be difficult if not impossible for to him to be located.

6.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 22 September 2016 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 8 November 2016 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.On 24 May 2017 the Applicant filed a Form 86 under HCAL 231/2017 for leave to apply for judicial review of the Board’s decision, which was refused by Hon Au-Yeung J on 16 November 2017 upon hearing his submissions and upon finding none of the grounds put forth by him were arguable for his intended challenge, and that there was no error of law or procedural unfairness in the process before the Board or in its decision. The Applicant did not appeal against that decision.

8.Meanwhile on 6 February 2017 the Director on his own initiative invited the Applicant to submit any 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”), and upon finding no additional materials or facts relevant to BOR 2 Risk had been submitted by the Applicant, the Director by a Notice of Further Decision dated 27 February 2017 rejected the Applicant’s BOR 2 Claim on the basis that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 Risk being violated upon his return to Pakistan.

9.On 27 February 2017 the Applicant again lodged an appeal to the Board against the Further Decision of the Director, and for which the Board on this occasion did not find necessary to hold any oral hearing and proceeded to deal with the appeal in the Applicant’s absence and on paper, and on 5 October 2018 it again dismissed his appeal and confirmed the Director ‘s Further Decision upon finding that he had failed to establish his BOR 2 Claim.

10.On 10 October 2018 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of this second decision of the Board, 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 that decision as it disregarded his dangerous situation but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application on this occasion. 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.

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 having earlier already rejected his claims under torture risk, BOR 3 risk and persecution risk, and whose decision had also been found to be without fault by the court without appeal, and in the absence of any additional facts or materials from the Applicant for his BOR 2 claim, the Board was in my view entitled to find, and correctly so, that there is no basis to accept that the Applicant would face any real risk of his absolute and non-derogable rights under the HKBOR including right of life under BOR 2 being violated upon his return to Pakistan. On the facts of the Applicant’s own case and in the light of the scope and threshold of a BOR 2 claim, there is in my view simply no room for engaging the BOR 2 ground.        

13.In the premises and having considered the further 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 BOR 2 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 2^nd 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