Saleem Muhammad v. Torture Claims Appeal Board

HCAL 551/2021

[2023] HKCFI 2083

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 551 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 45-year-old national of Pakistan who entered Hong Kong illegally on 25 June 2007 and was arrested by police on 29 June 2007. 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 some fellow villagers over their feuds with his family, 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 Village Josham, Sub-district Pesrur, District Sialkot, Pakistan. After leaving school he assisted his father and cousins in rearing buffalos in his home village.

3.One day in June 1997 one of his cousins was for some unknown reason attacked and killed by several fellow villagers, and thereafter the Applicant and his family reported the crime to the police and subsequently brought a court action against those assailants.

4.Eventually those assailants were convicted by the court and were given lengthy prison terms, but later the Applicant heard that they had all been released several years later after paying bribes, and after 2 more cousins of the Applicant were subsequently killed by them in revenge, the Applicant felt it was no longer safe to remain in Pakistan, and so on 20 June 2007 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 20 December 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 30 January 2019 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”).

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 and substantial risk of him being harmed or killed by those villagers 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 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 200 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 adult with working experience to move to other areas of the country away from his home district in large cities such as Karachi where it would be difficult if not impossible for anyone to locate him.

7.On 11 February 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 31 August 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 9 April 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found inconsistencies, discrepancies and evasiveness in the Applicant’s evidence that it doubted his claim of fear of harm from those fellow villagers that caused him to leave his country to come to Hong Kong, and that in any event it was a private feud between them and his family 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 that his claim for non-refoulement protection failed on all applicable grounds.

9.On 20 April 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for his intended challenge, and although some of his complaints were directed against the Director, for the present purpose I shall treat them as part of his intended challenge of the Board’s decision instead as follows:

(1)  That the Board failed to appreciate or give proper weight or importance to the presence of State Acquiescence in the Applicant’s case which had led to an unfair outcome of rejecting the Applicant’s non-refoulement claim;

(2)  That the Board failed to consider or give sufficient weight to the evidence that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies as well as the politicians which was the direct result of misconduct of police officials that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in Pakistan would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise;

(4)  That the Board in its decision referred to relevant COI but included meaning which suited its pre-conceived conclusion which was a clear case of unfair attitude shown against the Applicant which in itself is enough to render its decision void;

(5)  That the Board failed to attain high standard of fairness required by the Wednesbury test in its decision in failing to recognize that corruption and incompetency of the administration in Pakistan is still a very serious problem as various human rights organizations have compiled reports that stated testament to the Applicant’s assertions;

(6)  That the Adjudicator failed to make sufficient enquiry before finalizing the determination that the Applicant had failed to provide any credible evidence to prove material elements of his claim without recognizing that the Applicant as a torture claimant has no option at his disposal to bring evidence before the Board and under the custody of the Immigration Department, and as such that the Adjudicator had failed to give sufficient chance to the Applicant to arrange relevant evidence for his non-refoulement claim as well as his appeal.

10.These are however all just vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary 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 what relevancy were state acquiescence or police torture have to do with the Applicant’s claim when on the factual basis of even his own case that the alleged risk arose from a private dispute and vendetta between his family and those villagers who murdered his cousin which had never involved the Pakistani authorities or politicians, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how had the Applicant been deprived of the opportunity to present his evidence when he was able to make his representations and give his evidence at his appeal hearing before the Board without any problem. None of these assertions were elaborated or presented with any relevant particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge, 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, nor do I find any reasonably arguable basis for his intended application.

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.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 27 – 35 of 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.

13.The fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if real 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.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.Furthermore, the Applicant has recently filed an affirmation requesting to “close” his case as his dependent visa application has been approved but without providing any further or necessary details or documentary evidence to corroborate his assertion.

16.In the premises, as I am for the given 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 to “close” his case, I accordingly dismiss his leave application.

Dated the 11^th day of August 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