Naseer Muhammad v. Torture Claims Appeal Board

HCAL 167/2021

[2023] HKCFI 1444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 167 OF 2021

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 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 38-year-old national of Pakistan who entered Hong Kong illegally on 13 February 2016 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 certain local supporters of the political party Pakistan Muslim League (N) (“PML(N)”) as he supported their rival Pakistan Tehreek-e-Insaf (“PTI”) and/or by his cousins over some land dispute in their home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Nartopa, Tehsil Hazro, District Attock, Pakistan. After leaving school with a Master degree in English, he ran his fruits and vegetable business in his home country and later worked as a school teacher in his home district, and supported PTI regularly attended their local meetings and rallies.

3.One day in about 2010 the Applicant was attacked by some unknown men with hockey sticks and other weapons whom he believed to be PML(N) supporters who warned him to stay out of politics, and whereupon the Applicant became fearful for his safety and stayed away from his home district in other cities without further incidents before returning to his home district 2 years later, but after PML(N) won the 2013 general election and became the ruling party, the Applicant started to receive similar threatening messages warning him to stay away from politics that he again became fearful of harm from those PML(N) supporters.

4.In 2015 the Applicant also received threats from his cousins which arose from their dispute over the distribution of the sale proceeds of their grandfather’s lands sold by the Applicant’s father and his uncle, and after one occasion in October 2015 when he was attacked by some unknown men whom he suspected to be sent by his cousins over their dispute, the Applicant felt it was no longer safe to remain in Pakistan, and so on 11 February 2016 he departed 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 23 November 2018 and attended screening interview before the Immigration Department with legal representation.

5.By a Notice of Decision dated 20 December 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 found no substantial grounds for believing that there will be any real risk of him being harmed or killed by those local PML(N) supporters or his cousins upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that in the absence of any official involvement in his disputes with either of them 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 207 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 perceived enemies to locate him.

7.On 2 January 2019 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 May 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 22 January 2021 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 that it doubted the credibility of his claim of fear of harm from those local PML(N) supporters or his cousins that caused him to leave his home country for Hong Kong, and that in any event in the absence of any state or official involvement in either of such threats 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 that his claim for non-refoulement protection failed on all applicable grounds.

9.On 17 February 2021 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 in his supporting affirmation of the same date in which he just stated that he rejects the decision as it disregarded his dangerous situation but without providing any details or particulars or elaboration as to how it did so. 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.

10.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.

11.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.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.

13.Furthermore, the Applicant recently filed an affirmation requesting to withdraw his application as he wants to return to his home country.

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

Dated the 30^th day of May 2023

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