Ahmed Munir v. Torture Claims Appeal Board

HCAL 2079/2020

[2022] HKCFI 2714

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2079 of 2020

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 54-year-old national of Pakistan who entered Hong Kong illegally on 10 March 2009 and was arrested by police on 17 March 2009. 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 the local supporters of the political parties Pakistan People’s Party (“PPP”) and Pakistan Muslim League (Q) (“PML(Q)”) as he supported their rival Pakistan Muslim League (N) (“PML(N)”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Gujrat, Punjab, Pakistan. After leaving school he worked in the factories in his home district, and supported PML(N) regularly attended their local meetings and rallies but without holding any official post in the party.

3.During the 2008 local union council election of his home village, while the Applicant and his fellow PML(N) supporters were assisting in the village polling station, a dispute broke out between supporters of the three involved parties which led to the PML(N) supporters being attacked by the PPP and PML(Q) supporters that the Applicant sustained injuries until the police arrived to break up the fight and disperse the crowd.     

4.After the incident the Applicant continued to receive threats from those PPP and PML(Q) supporters, and after hearing that some of his fellow PML(N) supporters had been killed, the Applicant became fearful for his life, and on 26 February 2009 he departed Pakistan 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 15 September 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 14 January 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”).

6.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 PPP and 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 them to specifically target him for harm given that he was just an ordinary PML(N) supporter without any official post in the party, that whatever adverse interest anyone in the Applicant would have long dissipated all these years since he left the country in 2009, 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 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 the country away from his home district in large cities such as Lahore where it would be difficult if not impossible for anyone to locate him.

7.On 26 January 2015 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 22 February 2016 before the Board together with his lawyer from DLS during which he gave oral evidence as to his claim 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 10 April 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to his alleged political involvement and conflicts with supporters of rival parties that it doubted the credibility of his claim of fear of harm from them to cause him to leave Pakistan for Hong Kong given that he was just an ordinary PML(N) supporter without any official post in the party, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

9.Meanwhile the Director on his own initiative on 2 May 2017 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 after receiving and considering additional materials from him through his lawyer from DLS, the Director by a Notice of Further Decision dated 17 May 2017 also rejected the Applicant’s BOR 2 Claim upon finding that his claim on the factual basis of his claim did not engage the BOR 2 ground, and that he had failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 Risk upon his return to Pakistan.

10.On 29 May 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, and for which he attended another oral hearing on 3 June 2020 before the Board during which he again gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 16 July 2020 his appeal was again dismissed by the Board which also confirmed the further decision of the Director.

11.In this decision the Board found no substance in the Applicant’s submitted additional facts which were all hearsays, that the credibility of his claim had already been dismissed by the Board in its earlier decision, and that in any event on the factual basis of his own case that his claim simply did not engage the BOR 2 ground in its limited scope that it also failed under BOR 2 Risk.    

12.On 19 October 2020 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board regarding his BOR 2 Claim, 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 as his life is still in danger in his home country but without putting forth any proper ground for his intended challenge. 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.

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 BOR 2 Claim essentially on its finding on both his credibility and also the fact that the factual basis of his own case simply did not engage the BOR 2 ground in its limited scope for the analysis and reasoning set out in 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 at all.  

15.The fact is that it has also been established by the Director in his earlier 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.                

16.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 under all the applicable grounds.

17.Furthermore, the Applicant recently on 20 July 2022 filed an affirmation requesting to “close” his application as he wants to return to his home country.

18.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation of his wish to return to his home country, I accordingly dismiss his leave application.

Dated the 2^nd day of September 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