Ghaffar Muhammad v. Torture Claims Appeal Board

HCAL 2157/2018

[2022] HKCFI 1734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2157 of 2018

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 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 38-year-old national of Pakistan who last entered Hong Kong illegally on 9 January 2016 and surrendered to the Immigration Department on 18 January 2016 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by supporters of the political party Pakistan Peoples Party (“PPP”) as he supported their rival Jammu Kashmir People’s National Party (“JKPNP”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Pail Kumharan, Teshil & District Bhimber, Azad Kashmir, Pakistan. After leaving school he worked in his father’s electronic shop in his home village.

3.In 2006 he was abducted by a terrorist group who tried to recruit him to carry out bomb attacks but after months of detention he managed to make his escape to Mirpur, and later when he was told by his father that those terrorists were looking for him everywhere, he therefore departed Pakistan in September 2007 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised a torture claim but which he subsequently withdrew and was repatriated back to Pakistan in 2012.

4.Upon returning to his home village, the Applicant became a supporter of JKPNP regularly attended their local meetings and rallies, and during one such meeting in October 2013 in his home district, some PPP supporters fired gun shots at the Applicant and his fellow JKPNP supporters, injuring some of them but the Applicant managed to escape unharmed to Mirpur, and then to Islamabad, and in December 2013 he departed Pakistan for Libya, but as he was unable to find any work there, he eventually returned to Pakistan in March 2014, but shortly thereafter he left the country again for Afghanistan where he stayed with a friend and assisted in his business until September 2015 when he returned to Pakistan.

5.However, as he was still fearful of being harmed by those PPP supporters, he departed Pakistan again on 7 January 2016 for China, and from there he again sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 18 January 2017 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”).

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 PPP supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there had been no further threats from them for some 10 years before the Applicant left the country that it is not accepted that they would still have any adverse interest in him whom they had no reason to specifically target for harm given that he was just an ordinary JKPNP supporter without any official post in the party, 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 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 where it would be difficult if not impossible for him to be located.

8.On 26 January 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which the Board did not hold any oral hearing and dealt with the appeal in his absence and on paper, and on 14 August 2018 it dismissed his appeal and also confirmed the decision of the Director.

9.In its decision the Board accepted the Applicant’s claims of events occurred in Pakistan prior to his last departure of the country but found even on his own case at the highest that there was no evidence of any threats or ill-treatment against the Applicant by the PPP people or any evidence that he had been specifically targeted by them or anyone in his country for any reason, and that in any event in the absence of any official involvement that state/police protection would be available to the applicant if needed upon his return to Pakistan as well as reasonable internal relocation for him to move safely 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.

10.On 8 October 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 or his affirmation or his subsequent written submissions, nor did he attend the hearing of his application without any explanation. 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 fact is that it has been correctly 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.

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 17^th day of June 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