Muhammad Imran v. Torture Claims Appeal Board

HCAL 615/2019

[2022] HKCFI 1394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 615 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 (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 17 August 2007 and was arrested by the police on 19 August 2007.  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 certain local supporters of the political party Pakistan Muslim League (Q) (“PML(Q)”) as he supported their rival Pakistan Muslim League (N) (“PML(N)”), and after his torture claim was rejected, 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 Jalal Pur Jattan, District Gujrat, Punjab, Pakistan.  After leaving school he worked as a mechanic, got married and raised a family with three children, and supported PML(N) regularly attended their local meetings and rallies.

3.On one occasion in late 1999 or early 2000, while the Applicant and his fellow PML(N) supporters assembled at the local bazaar for their party gathering, they were attacked by supporters of rival PML(Q) who fired gun shots at them injuring some of the PML(N) supporters including a friend of the Applicant who had to escort him to hospital for treatment.

4.A few days later some of those PML(Q) supporters came to the Applicant’s home and attacked him with wooden sticks that he was knocked unconscious and was later taken to the hospital for medical treatments. Upon his discharge from hospital, the Applicant moved from place to place to avoid the PML(Q) people and eventually moved to Karachi in early 2000 where he stayed for more than 3 years without incidents.

5.However, one evening in 2004 he was shot at by some unknown men on motorcycles, and while he was not injured, he fled to Quetta and then departed Pakistan for Iran where he worked as a mechanic for 3 years until 2007 when he returned to Pakistan, but later when he heard that those PML(Q) people were still looking for him everywhere, he felt it was still not safe to return to Pakistan, and so in August 2007 he again departed but this time for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police, he 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 3 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

6.By a Notice of Decision dated 10 August 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”).

7.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 local PML(Q) supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for the Applicant to be specifically targeted due to the fact that he was just an ordinary PML(N) supporter without any official post in the party, that in any event in the absence of any official involvement and that PML(Q) was no longer the ruling party in Pakistan that state/police protection would be available to the Applicant upon his return to Pakistan, 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 201 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 Lahore or Islamabad where it would be difficult if not impossible for any PML(Q) people to locate him.

8.On 17 August 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 13 September 2018 with his lawyer from DLS before the Board during which he gave further evidence and also answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 8 February 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found the Applicant’s evidence relating to his alleged involvement with the PML(N) party vague and generalized, while his claim of the shooting incident by the PML(Q) people in late 1999 or early 2000 was inherently implausible since PML(Q) was not founded as a political party until July 2002 that such false evidence on the crucial element at the core of his case so damaged his general credibility, and coupled with the inconsistencies and discrepancies between his evidence earlier given to the Director and those given before the Board that it concluded that he did not give a truthful or reliable account of events occurred in Pakistan before his came to Hong Kong that it was not persuaded that there is any real risk that the Applicant will face from any PML(Q) people or from anyone if refouled to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.     

10.On 5 March 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 stated that he is not satisfied with the decision and that his life is still in danger in his home country but 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.

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 62 – 74 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, 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 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.     

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 17^th day of May 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