Shabeer Muhammad v. Torture Claims Appeal Board

HCAL 168/2019

[2022] HKCFI 3809

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 168 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 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 42-year-old national of Pakistan who entered Hong Kong illegally on 15 January 2016 and surrendered to the Immigration Department on 20 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 his cousin over a land dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Mirpur City, Azad Kashmir, Pakistan.  After leaving school he worked as a labourer, got married and raised a family with 4 children in his home district.

3.The Applicant’s father and uncle jointly owned a piece of land in Jhang District of Punjab which they inherited from his grandfather, but in 2012 when it was discovered that his father’s half-share of the land had been forcefully occupied by his cousin after his uncle had passed away which had led to frequent conflicts between the two families, and in 2015 the Applicant assisted his father to sell his father’s share of the land to another person.    

4.After the sale his cousin became furious with the Applicant, and one day in December 2015 he came with two men to Mirpur and beat the Applicant in a market including slashing him in his leg with a knife before fleeing from the scene.

5.After the assault the Applicant became fearful for his life, and so in January 2016 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 4 December 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 27 December 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 his cousin upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from him, that it was in any event a private family dispute without 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 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 Islamabad where it would be difficult if not impossible for his cousin to locate him.

8.On 8 January 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 9 November 2018 before the Board during which he gave evidence and answered questions raised of his claim the Adjudicator for the Board. On 21 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board accepted the Applicant’s evidence as to the land dispute between his family and his cousin but found no evidence of any real intention of his cousin to seriously harm or kill the Applicant over the land of the Applicant’s father which had since been disposed of to a third party, and that in any event it was a private personal dispute between them without any official involvement that state or police protection would be available to the Applicant if needed upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.       

10.On 17 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1) That the Director just made assumptions about the situation and condition of Pakistani culture without actually visiting the country especially the area of the Applicant in order to understand his case properly which caused him to wrongly assess his claim;

(2) That the Director failed to appreciate that the Applicant and many other asylum seekers came to Hong Kong to flee the danger in their home country in wrongly refusing their claim and exposing them to such danger in their home country; and

(3) That the Director and the Board failed to properly assess the Applicant’s claim under BOR 3 risk thereby violating his right to be free from CIDTP under Article 3 of the Hong Kong Bill of Rights.  

11.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they would apply to his case or how the Director or the Board had erred in their decisions, that it is wholly unrealistic and devoid of legal basis to suggest that the Director or his immigration officer should personally visit the Applicant’s home country in order to understand the local situation when it is legally accepted that assessing the relevant and reliable COI would suffice, and from which both the Director and the Board had properly conducted their assessment of the availability of state protection to the Applicant which even on his own case at the highest was a private family dispute over some land of his father between him and his cousin without any official involvement and wholly negated by the availability of state and police protection to the Applicant upon his return to Pakistan, and as such I do not find any of his grounds reasonably arguable for his intended application, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

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 also been established by the Director in his decision that the risk of harm in his claim 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 30^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