Tanveer Muhammad v. Torture Claims Appeal Board

HCAL 369/2021

[2024] HKCFI 127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 369 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 9 October 2007 and was arrested by police on the same day. 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 his former factory manager in revenge for having injured him during a fight and/or by the police for the criminal offence of having wounded the manager in the incident, and after his torture claim was rejected, he then sought non-refoulement protection on the same bases. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Mohallah, Haji Pura, Tehsil Sialkot, Punjab, Pakistan. After leaving school he worked in a medical equipment factory in his home district, and continued to reside with his parents.

3.In 2007 he started to have some salary issue with the factory manager Zulifqar which eventually led to a heated quarrel and then a fight during which the Applicant stabbed Zulifqar in the stomach with a pair of scissors.

4.As a result Zulifqar was taken to the hospital for medical treatments, and the Applicant was subsequently arrested by police for assault, and was then released on bail 2 days later.

5.Thereafter his parents approached Zulifqar with a view for settlement but was rejected by him who swore to take revenge against the Applicant, and as he also feared of being sent to prison, the Applicant therefore fled to Islamabad, and on 24 August 2007 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 torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 30 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 14 December 2018 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”).

7.In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that he would be harmed or killed by Zulifqar or the police upon his return to Pakistan as it was only the Applicant’s own speculation that Zulifqar had any intention to harm or kill him over some salary dispute after having reported the matter to the police, that in any event it was a private monetary dispute between the 2 of 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 or Islamabad where it would be difficult if not impossible for Zulifqar to locate him, while relevant COI also show that if the Applicant is indeed to be prosecuted by the police for assaulting or wounding Zulifqar that under the current legal and judicial system in Pakistan the Applicant would be entitled to due process and proper legal representation to defend those charges in a fair trial by a competent court and with the right to appeal to higher courts that there is no basis for any fear of torture or ill-treatments by the authorities either.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 2 November 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 5 March 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of his monetary dispute with Zulifqar that led to his stabbing of Zulifqar and subsequent arrest by the police but found no evidence of any real intention of Zulifqar to take matter into own hands by harming or killing the Applicant in revenge, that in any event any such risk if real will be minimized or negated by state or police protection as well as reasonable internal relocation for the Applicant to move to other part of the country without any risk of being located, while relevant COI shows that according to the Pakistani Penal Code that any prosecution for such charges against the Applicant for assaulting or wounding Zulifqar during their fight would likely attract just a monetary fine or light imprisonment, and for which the Applicant would be entitled under the current legal and judicial system in Pakistan to due process and proper legal representation in a fair trial that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

10.On 17 March 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 is not satisfied with the decision as his life is still in danger in his home country but without putting forth any proper ground for his intended challenge. 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.

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 for the thorough and detailed analysis and reasoning set out in paragraphs 14 – 27 of its decision and with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or judicial 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 findings of the Board.

13.Furthermore, 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 from Zulifqar 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.Moreover, the Applicant recently on 18 October 2023 filed an affirmation requesting to withdraw his application as he now wants to return to his home country.

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 his wish to return to his home country, I accordingly dismiss his leave application.

Dated the 9^th day of January 2024

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