Siddique Muhammad Amir v. Torture Claims Appeal Board

HCAL 3294/2019

[2021] HKCFI 3190

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3294 of 2019

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 the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  the application for leave to apply for Judicial Review be reinstated; and

2.  leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 35-year-old national of Pakistan who arrived in Hong Kong on 25 October 2013 with permission to remain as a visitor extended up to 15 November 2013 when he did not depart and instead overstayed, and on 30 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 the political party Pakistan Muslim League (Q) (“PML(Q)”) as he supported their rival Pakistan Peoples Party (“PPP”).  He was subsequently released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in District Faisalabad, Punjab, Pakistan.  After leaving school he worked as a farmer and later in various jobs, and followed his family’s tradition to support PPP by regularly attended their local meetings and rallies, during which he and his fellow PPP supporters would from time to time come into violent conflicts with the PML(Q) supporters, and after several incidents when he and his brother were attacked by those PML(Q) supporters and after his brother was killed on the last occasion, the Applicant became fearful for his life, and so in October 2013 he departed Pakistan for Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 11 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).       

3.By a Notice of Decision dated 2 August 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”).

4.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that he would be harmed or killed by those PML(Q) supporters upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he had been specifically targeted or that his brother had been killed or killed by those PML(Q) people given his lack of official position in PPP, 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”) 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 part of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for those PML(Q) people to locate him.

5.On 15 August 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 12 July 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 30 October 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

6.In its decision the Board found many aspects of the Applicant’s evidence of his claim inconsistent and defy logic that it did not find the centerpiece of his claim credible and rejected his alleged fear of harm from those local PML(Q) supporters upon his return to Pakistan, that in any event in the absence of any official involvement that state or police protection would be available to him as well as reasonable internal relocation for him to safely move to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

7.On 5 November 2019 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 repeated his claim that his life is still in danger in his home country but without putting forth any proper ground for his intended challenge.

8.However, before his application could be dealt with by the court, the Applicant on 5 May 2021 filed an affirmation requesting to “close” his application as he had compromised his dispute with his enemy and hence he wanted to return to his home country. 

9.Accordingly, on 11 May 2021 Deputy High Court Judge To acceded to his request and directed that his application be withdrawn.

10.Two months later on 22 July 2021 the Applicant issued a summons for leave to “restore” his leave application as his life would still be in danger in his home country due to the current political situation in Pakistan, and at the hearing of his summons he further clarified that earlier he had compromised his dispute with his enemy, but recently his enemy had attacked his parents in his home country, hence he still fears of being harmed or killed if he is to return to his home country, and therefore requested to allow him to re-instate his leave application. 

11.Given the fact that his leave application has never been formally determined before it was withdrawn, and given the gravity of the consequences of applications of such nature, I allowed the Applicant’s leave application to be reinstated for consideration, but found as noted above no reasonably arguable grounds have been put forth by the Applicant in his Form 86 or his supporting affirmation for his intended challenge of the Board’s decision, nor was he able to do so at the hearing other than a regurgitation of his claim that it is still dangerous for him to return to his home country as his enemy has since his departure become even more powerful, while he has formed a new family in Hong Kong that he does not wish to leave.

12.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 for judicial review. 

13.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.

14.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 33 – 34 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.    

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

16.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. 

17.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 25^th day of October 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