Aftab Muhammad v. Torture Claims Appeal Board

HCAL 1571/2021

[2023] HKCFI 2863

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1571 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 41-year-old national of Pakistan who entered Hong Kong illegally on 16 December 2015 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 his uncles over some land dispute within their family. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Manyanda, Tehsil, Kallar Syedan, District Rawalpindi, Punjab, Pakistan where he worked as a salesperson and a labourer after leaving school, and where his father later in 2010 gifted to him some farmland but which were coveted by his uncles, while his brothers were also on his uncles’ side after having married their daughters.

3.As he persistently refused their demand to hand over the farmland to his uncles, the Applicant in 2013 started to receive threatening phone calls making death threats against him, and one day in late March 2013 two unknown men fired several shots at him on the street but somehow the Applicant managed to escape unharmed. 

4.After the incident the Applicant suspected that those 2 men were sent by his uncles to try to kill him over their land dispute, and as he became fearful for his life he then fled to Sahiwal to take shelter in a friend’s place, and in late 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 4 September 2018 and attended screening interview before the Immigration Department with legal representation.             

5.By a Notice of Decision dated 18 September 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 uncles 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 that those 2 armed men were indeed sent by his uncles to kill him, that in any event it was a private land dispute between him and his uncles within their 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 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 Lahore where it would be difficult if not impossible for his uncles to locate him.

7.On 2 October 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 16 November 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 19 October 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it did not consider him to be a credible witness and rejected his claim of having any land dispute with his uncles or that he had been threatened by them or that he feared of harm from them that caused him to leave his home country to come to Hong Kong to seek protection as entirely incredible, and concluded that there is no evidence to suggest that he faces any real risk of proscribed harm from his uncles or anyone if refouled to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 15 November 2021 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 that led to an unfair outcome of rejecting his non-refoulement claim;

(2) That the Board failed to take into account of the fact that the Applicant was tortured at the behest of and in full collusion of the police and state law enforcement agencies as well as politicians 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 the Board failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case;

(4) That the Board had referred to relevant COI that suited its pre-conceived conclusion against the Applicant’s case which is a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5) That the Board failed to attain high standard of fairness in failing to consider the Applicant’s argument that corruption and incompetency of the administration in Pakistan is still a very serious problem which various human rights organizations had compiled reports that stated testament to the Applicant’s assertions that its decision should be rendered unreasonable in the scope of public law;

(6) That the Adjudicator failed to make sufficient enquiry before finalizing the determination and failed to give him sufficient opportunity to arrange relevant evidence to the Board in support of his non-refoulement claim as well as his appeal.       

10.These are however all just bare 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 what relevancy is State Acquiescence to his claim, 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 where is the evidence that the Applicant had been tortured by police or politicians when the factual basis of even his own case that it was a private land dispute within his family without any official involvement that this complaint is simply factually incorrect. 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.

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 26 - 42 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 the Director in his 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, 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.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.Moreover, the Applicant recently filed an affirmation requesting to withdraw his application as his problem in his home country has been resolved.

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 of having no problem returning to his home country, I accordingly dismiss his leave application.

Dated the 7^th day of November 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