Azeem Muhammad v. Torture Claims Appeal Board

HCAL 288/2019

[2023] HKCFI 2595

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 288 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 the Applicant 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 34-year-old national of Pakistan who entered Hong Kong illegally on 11 March 2016 and surrendered to the Immigration Department on 14 March 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 some property dispute within their family. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Chandni Chaok Manawan, Lahore Batta Pur, Punjab, Pakistan. After leaving school he worked as a store keeper, and in 2013 he ran a garment shop in his home district which he inherited from his grandfather, but which was later coveted by his cousin who disputed the Applicant’s right of ownership and demanded that the shop be transferred to him.

3.One day in May 2013 his cousin together with several men came to the shop to again demand the Applicant to transfer the shop to him, and when the Applicant refused, his cousin together with his men proceeded to attack him by punching and kicking him all over his body.

4.After several more physical attacks by his cousin and his men, and when his cousin in the last assault also threatened to kill him next time if he still refused to hand over the shop, the Applicant became fearful for his life, and so on 18 August 2015 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 22 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 22 January 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 his cousin upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from his cousin, that there is no evidence of any real intention of his cousin to seriously harm or kill him, that in any event it was a private property dispute between them within the family 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 areas of the country away from his home district in large cities such as Karachi or Faisalabad where it would be difficult if not impossible for his cousin to locate him.

7.On 30 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 12 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 28 January 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of fear of harm from his cousin that caused him to flee his home country to come to Hong Kong for protection, and that in any event if the risk were real that it arose from essentially a private land dispute between them within their 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 30 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge which can be summarized as follows:

(1)  That the decision revealed no reasonable basis for rejecting the credibility of the Applicant’s claim;

(2)  That the Board failed to consider the extended form of State Acquiescence in the Applicant’s claim;

(3)  That the Board failed to fully consider the COI reports in assessing risk to the Applicant in his home country;

(4)  That it was procedurally irregular that the decision-maker is a different person from the interviewing officer;

(5)  That it was procedural impropriety or unfairness in the Board’s failing to investigate into the relevant COI of Pakistan;

(6)  That it was irrational of the Board to fail to place weight on relevant information instead selectively place weight on irrelevant information;

(7)  That it was irrational of the Board to fail to consider a consistent system of human rights violations;

(8)  That it was irrational of the Board to fail to consider if state protection exists in Pakistan;

(9)  That it was irrational of the Board to place weight on irrelevant matters or on inaccurate or incorrect facts;

(10)  That it was procedural impropriety in the Board’s failure to call for psychological and/or psychiatric reports or evaluations;

(11)  That it was procedural impropriety of the Board to apply the incorrect standard of proof; and

(12)  That there was no proper basis for the Board to consider that internal relocation is available to the Applicant.

10.These are however all just some broad and vague 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 how did the Board apply the incorrect standard of proof, 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 what relevancy was State Acquiescence to the Applicant’s claim, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

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 of his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 71 – 89 in 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.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 accordingly I refuse his leave application.

Dated the 10^th day of October 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