Muhammad Nazeer v. Torture Claims Appeal Board

HCAL 56/2016 and

HCAL 88/2021

(Consolidated)

[2022] HKCFI 909

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 56 of 2016

BETWEEN

AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 88 of 2021

BETWEEN

(Consolidated pursuant to the Order of 

Deputy High Court Judge Bruno Chan dated 1 March 2022)

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 HCAL 56/2016 and HCAL 88/2021 in open court;

Order by Deputy High Court Judge Bruno Chan:

Both applications for leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 48-year-old national of Pakistan who entered Hong Kong illegally on 17 August 2006 and was arrested by police on 24 July 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by some Wahhabi Muslims over their land dispute with his maternal grandparents in their home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Sunni Muslim in Gujranwala, Punjab, Pakistan. After leaving school he worked in various jobs, and last owned a shop selling rickshaw spare parts in his home district.

3.In 2006 his maternal grandparents who were also Sunni Muslims were having a land dispute in their home village in neighboring Khariyan with their local Wahhabi Muslims which had deteriorated into a violent conflict during which his grandparents were attacked and sustained injuries, and so the Applicant immediately went there to assist his grandparents by escorting them to hospital for treatments, and also reported the attack to the police.

4.With the information provided by the Applicant and his cousin, the Khariyan police were able to arrest those some of the Wahhabis Muslims responsible for the attack of his grandparents, and afterwards the Applicant returned to his home village in Gujranwala.

5.However, several weeks later in March 2006, some men came to the Applicant’s shop and fired several shots with their pistols from outside but did not hit the Applicant as he was able to take cover behind some objects. After those men had left, the Applicant did not make a report to the police as he was unable to recognize any of them, but he suspected that they were Wahhabi Muslims from Khariyan to try to take revenge against him for assisting the police to arrest their fellow Wahhabi Muslims over their dispute with his grandparents.         

6.The Applicant therefore became fearful for his life and fled to Karachi to take shelter in a friend’s place before moving on to another friend’s place in Mehmood Abad, but after he was again attacked by some unknown men there, the Applicant felt it was no longer safe to remain in Pakistan, and so in August 2006 he departed for China, and from there he later sneaked into Hong Kong, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Torture Claim Form (“TCF”) and a Supplementary Claim Form (“SCF”) on 29 March 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.By a Notice of Decision dated 31 July 2014 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”).

8.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 those Wahhabi Muslims from his grandparents’ village upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there was in fact no reliable evidence that those alleged attacks on the Applicant were anything to do with those Wahhabi Muslims from his grandparents’ village, that in any event it was a private dispute between them without 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 196 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 or his grandparents’ village in large cities such as Islamabad where it would be difficult if not impossible for those local Wahhabi Muslims to locate him.

9.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 11 June 2015 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 1 March 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision (“Board’s First Decision”).

10.In its decision the Board found the Applicant’s claim of risk of harm from those Wahhabi Muslims from his grandparents’ home village arising from their land dispute was based entirely on his own suspicion and speculation unsupported by any reliable evidence, that in any event if he were to desist from interfering with their own affair in their village that there should be no risk of any harm or ill-treatment from them, and that since he left his home country in 2006 and the subsequent passing of his grandparents that it is not accepted that those local Wahhabi Muslims would still have any adverse interest in him after all these years upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.     

11.On 8 March 2016 the Applicant filed a Form 86 under HCAL 56/2016 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation he put forward the following grounds for his intended challenge:    

(1)     Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2)     Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3)     Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Pakistan;

(4)     Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in Pakistan and misdirected himself as to the extended meaning of state protection;

(5)     Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)     Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(7)     Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision; and

(8)     Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.  

12.However, before his application could be dealt with by the Court, the Director on 15 December 2016 on his own initiative invited the Applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2”), and upon receiving and considering such additional information from the Applicant, the Director by a Notice of Further Decision  dated 4 July 2017 also rejected his BOR 2 Claim upon finding that his claim clearly did not engage the BOR 2 ground, and that in any event he had failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 upon his return to Pakistan.

13.The Applicant again lodged an appeal to the Board against the Director’s further decision, and for which he attended another oral hearing on 11 November 2020 before a different Adjudicator for the Board during which he gave further oral evidence and also answered questions raised of his claim by this second Adjudicator for the Board.  On 29 December 2020 his appeal was again dismissed by the Board which also confirmed the further decision of the Director (“Board’s Second Decision”).

14.In this second decision the Board by a different Adjudicator also found on the same evidence from the Applicant of no proper basis for him to continue to have any fear of harm from those Wahhabi Muslims from his grandparents’ village or for there to be any adverse further interest from them in the Applicant after some 15 years since he left Pakistan that it is not satisfied that the Applicant had established any basis for a finding that he would be at any risk of his right to life being violated upon his return to Pakistan that his claim for non-refoulement protection also failed on the BOR 2 ground.     

15.On 26 January 2021 the Applicant filed another Form 86 under HCAL 88/2021 for leave to apply for judicial review of this second decision of the Board, and put forward additional grounds for his intended challenge as follows:

(1)     That the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)     That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)     That the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural error or unfairness; and

(4)     That the Board failed to meet the greater care and duty owed to a self-represented claimant.      

16.To save time and costs, and as both applications are related to the same claim of the Applicant, and with no objection from him, I at the hearing directed that they be consolidated for hearing and determination, and accordingly, I shall proceed to consider the two sets of grounds or complaints of the Applicant against the respective decisions of the Board as listed above.     

17.They are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decisions, or how did the Board unlawfully fetter it discretion in rejecting his appeals or acted procedurally unfair in dealing with his appeals, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant in either applications, nor was he able to do so at the hearing of his application. As such and in the absence of any error of law or irrationality or procedural unfairness in either of his appeals before the Board or in its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge in either application.

18.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.

19.The only complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle for both of his appeals being provided to him only a few days before his appeal hearings before the Board which consisted of the Director’s skeleton submissions and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal on both occasions.

20.Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his TCF or SCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his TCF and SCF were completed on his own instructions with legal assistance, and that at his oral hearing for either of his appeals he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeals. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeals before the Board, nor do I find it reasonably arguable for his intended challenge either.

21.Furthermore, the fact is that it has been established by the Director in his first 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, a decision also confirmed by the Board, there is simply no justification to afford the Applicant with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

22.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.

23.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended applications for judicial review, and I accordingly refuse his leave applications.

Dated the 29^th day of March 2022.

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