Rafique Mohammad v. Torture Claims Appeal Board

HCAL 630/2019

[2022] HKCFI 3744

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 630 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 54-year-old national of Pakistan who entered Hong Kong illegally and was arrested by police on 23 August 2009 and was referred to the Immigration Department 2 days later on 25 August 2009. 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 his girlfriend’s family who disapproved of their relationship and/or the police over a false case that he had killed his girlfriend, 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 Jhelum, Pakistan. After leaving school he joined the army for 2 years, and upon his discharge from the army he returned to his home district to work in various jobs, got married and raised a family with 4 children.

3.In 2006 he started to date a girl Sultana from a wealthy family in the neighbouring village, but in 2007 when he proposed to marry Sultana as his second wife, which he was allowed to do according to the Islamic law, his marriage proposal was rejected by Sultana’s family due to their different class and social status.

4.The Applicant and Sultana therefore decided to run away to Lahore to get married there, but before they were able to register their marriage, they were tracked down by men sent by her family who grabbed Sultana and took her away, while the Applicant managed to make his escape and took shelter in a friend’s place in Sarai Alamgir.

5.Later when the Applicant heard that Sultana had been killed by her family for dishonoring the family, that they were looking for him everywhere to kill him too, and had also made a false charge to the police that Sultana was murdered by him, the Applicant became fearful for his life and fled to Karachi where he found a job in a factory.

6.However, as he was still fearful of being tracked down by Sultana’s family or by the police over the false case brought against him, the Applicant on 6 August 2009 departed Pakistan 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 by the Immigration Department, he then sought non-refoulement protection, for which for which he completed a Supplementary Claim Form (“SCF”) on 21 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 29 June 2018 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”).

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 Sultana’s family upon his return to Pakistan as low due to the absence of or low frequency and intensity of past ill-treatment from them, that there is no evidence that Sultana had been killed by her family or that a false case had been made against him or that he was being pursued by the police other than from hearsays and his own speculation and that he was able to leave the country without problem, that it was in any event a private dispute between him and Sultana’s family without any official involvement that state or police protection would be available to the Applicant if resorted to 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 770,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young man to move to other part of the country away from his home district in large cities such as Islamabad where it would be difficult if not impossible for anyone to locate him.

9.On 12 July 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 22 October 2018 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 February 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found the Applicant’s evidence of threats from Sultana’s family was only based on hearsay and speculation, while there is no evidence of any adverse interest of the police in him over any false charge given that he had remained in Pakistan for 2 years without any charge or arrest and that he was able to leave the country without problem, and that in any event his problem with Sultana’s family if true was a private dispute without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by Sultana’s family that his claim for non-refoulement protection failed on all applicable grounds.

11.On 5 March 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation he put forth the following grounds for his intended challenge:

(1)  No reasonable basis for rejecting the Applicant’s claim;

(2)  Failure to consider the extended form of state acquiescence;

(3)  Failure to fully consider all the relevant COI in assessing the Applicant’s claim;

(4)  Irregularity of the decision-maker being a different person than the interviewing officer;

(5)  Procedural impropriety/unfairness in failing to investigate into the COI of Pakistan;

(6)  Irrationality in failing to place weight on relevant COI and instead place weight on irrelevant information;

(7)  Irrationality in failing to consider that there is a consistent system of human right violations in Pakistan;

(8)  Irrationality in failing to consider if state protection exists in Pakistan;

(9)  Irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(10)  Procedural impropriety in failing to call for psychological and/or psychiatric reports or evaluations;

(11)  Procedural impropriety in applying the incorrect standard of proof; and

(12)  No proper basis for considering that internal relocation was available to the Applicant.

8.         These grounds however appear to me something copied from pro forma statements commonly used in this type of applications but wholly irrelevant to the Applicant’s claim, or just some broad and vague assertions of his containing a few key words or 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 decision, or in what way did the Adjudicator fail to consider the extended form of state acquiescence or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Adjudicator fail to give reasonable basis for rejecting the claim or fail to consider human rights violations in Pakistan, or why it was necessary or relevant to call for psychological or psychiatric evaluations in what was even on his own case essentially a private dispute without any state or official involvement. As such I do not find any of his grounds reasonably arguable for his intended challenge, and that 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 merits in his intended application either.

12.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.

13.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 his claim if true 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.

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 15^th day of December 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