Muhammad Zafran v. Torture Claims Appeal Board

HCAL 1257/2020

[2023] HKCFI 2798

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1257 OF 2020

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 55-year-old national of Pakistan who entered Hong Kong illegally on 5 November 2015 and was arrested by police on 6 November 2015. 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 a farm owner in his home village over some monetary or compensation dispute between them due to some fire accident for which the owner blamed the Applicant and demanded compensation from him. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Malikpur, Dawra Tehsil, Gujar Khan District, Punjab, Pakistan. After leaving school he worked as a farm worker, got married and raised a family with 3 children in his home village.

3.One day in 2015 while he was working in the farm, a fire broke out that killed some of the farm’s cattle for which the farm owner blamed the Applicant and demanded compensation from him, and when the Applicant refused, he was assaulted by the farm owner and his followers with punches and kicks that caused injuries to his face and nose.

4.After the assault the Applicant fled to Rawalpindi, and on 4 November 2015 he departed Pakistan 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 Non-refoulement Claim Form (“NCF”) on 8 November 2018 and attended screening interview before the Immigration Department with legal representation.             

5.By a Notice of Decision dated 21 November 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 the farm owner and followers upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to press him for compensation for their loss due to the accident for which they blamed the Applicant, that in any event it was a private monetary or compensation dispute between them 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 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 areas of the country away from his home district in large cities such as Lahore where it would be difficult if not impossible for anyone to locate him.

7.On 4 December 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 1 August 2019 and 6 August 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 28 May 2020 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 the farm owner that caused him to leave his country to come to Hong Kong for protection, and that in any event even if such risk is real that it arose from some private monetary or compensation dispute between the 2 of them 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 22 June 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(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 led to an unfair outcome of rejecting his non-refoulement claim;

(2)  That the Board failed to recognize the fact that the Applicant was tortured at the behest of or in full collusion of the police and the state law enforcement agencies as well as the politicians due to direct result of misconduct of police officials;

(3)  That the Board failed to take the argument into account that the state would be rendered liable to the Applicant by cause of the state and its officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(4)  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 against the Applicant’s claim;

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

(6)  That the Board failed to attain high standard of fairness required by the Wednesbury test in the decision with the argument that corruption and incompetency of the administration in Pakistan is still a very serious problem as various human rights organizations had compiled reports on the matter which stated testament to the Applicant’s assertions that the Board’s decision should be considered unreasonable in the scope of public law;

(7)  That the Adjudicator failed to make sufficient enquiry before finalizing the determination of the Applicant’s claim; and

(8)  That the Adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence to support his non-refoulement claim as well as his appeal.      

10.These are however all just 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 in what way did the Board or the Adjudicator fail to make proper or sufficient enquiry or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy is State Acquiescence to the Applicant’s case which even on his own case at the highest was a private monetary or compensation dispute between him and the farm owner in his home village due to some fire accident without any state or official involvement, or in what way was the Applicant not given any opportunity to provide relevant evidence in support of his claim when he was given 2 oral hearings during which he was able to make his full and proper representation of his case together with supporting documents to the Board with the assistance of an interpreter and without any problem. As such, and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge or any merits in 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 vDirector of Immigration [2018] HKCA 524.

12.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 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.                

13.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.

14.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 31^st 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