Kaleem Muhammad v. Torture Claims Appeal Board

HCAL 628/2019

[2022] HKCFI 3201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 628 of 2019

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 36-year-old national of Pakistan who entered Hong Kong illegally on 13 April 2015 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the family of a neighbor in revenge over the neighbour’s death from a fight with other villagers including the husband of a cousin of the Applicant. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Gujar Khan, Rawalpindi, Pakistan. After leaving school he worked as a driver in his home district.

3.One day in 2009 a fight arose in his neighbourhood between a neighbor by the name of Raqib with 5 fellow villagers including a cousin of the Applicant that led to the death of Raqid, for which his family including his brothers Kabir and Naveed blamed the Applicant’s family and swore to take revenge against him and his family by making a false claim against him to the police, and so the Applicant fled to Azad Kashmir to take shelter in his sister’s place before moving on to Quaita to stay with his aunt where he found a job working as a driver for the next 3 years.

4.In 2012, the Applicant returned to his home village to resume his job as a driver, but one day while at work, he was informed by his mother that Raqib’s family members had come looking for him to take revenge, and so the Applicant departed Pakistan on 21 March 2015 for China, and from there he later sneaked into Hong Kong, and after his arrest by police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 8 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 21 March 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”).

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 Raqib’s family upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any adverse interest of the police or authorities in the Applicant over any false charge against him given the fact that he was able to move from place to place all those years without being arrested and to eventually leave the country without any problem, that in any event his problem with Raqib’s family was a private dispute without any official involvement that state or police protection would be available to the Applicant if needed 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 204 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 Karachi or Lahore where it would be difficult if not impossible for anyone to locate him.

7.On 11 April 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 24 September 2018 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 5 December 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found the Applicant’s evidence inconsistent exaggerated and unconvincing that it doubted the credibility of his claimed fear of harm for leaving his home country for Hong Kong that it rejected his claim of fear of harm from his neighbour’s family upon his return to Pakistan, nor is there any evidence or reason to doubt that he would not be entitled to state or police protection if needed or that his neighbour’s family would be able to locate him anywhere in Pakistan if he were to move to other part of the country that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

9.On 5 March 2019, the Applicant filed his Form 86 for leave to apply for judicial review of the decision of the Director dated 21 March 2018, but given the fact that decision had clearly since been superseded by the Board’s decision of 5 December 2018 and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549, I shall therefore treat his application as one to challenge the Board’s decision, but in either case the Applicant has failed to put forth any proper ground for seeking relief in his Form or his supporting affirmation in which he just stated that he does not agree with the decision as his life is still in danger in his home country that he cannot return to Pakistan but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

10.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 in what is clearly a private case of vendetta without any official involvement even on the factual basis of the Applicant’s own case, I do not find any reasonably arguable basis for his intended challenge of such findings of the Board that state or police protection would be available to negate any such risk to the Applicant.

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.The fact is that it has been established by both the Director and the Board in their respective decisions 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 his to relocate to other part of Pakistan, there is simply no justification to afford his 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 21^st day of October 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