Iftikhar Mohammad v. Torture Claims Appeal Board
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HCAL 3890/2019 [2024] HKCFI 1991 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3890 OF 2019
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan: Leave to apply for judicial review be refused. Observations for the Applicant: 1.The Applicant is a 45-year-old national of Pakistan, who had previously in 2002 entered Hong Kong as a visitor but overstayed and was subsequently arrested by police for various criminal offences and was repatriated to Pakistan in 2008 after serving a prison term of 12 months, again entered Hong Kong on 10 August 2012 illegally, and was arrested by police on 9 October 2012 for which he was subsequently convicted and sentenced to another prison term of 15 months. Upon his discharge from prison and was referred to the Immigration Department for deportation, he then raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by 3 brothers from his home district who were supporters of the political party Pakistan People’s Party (“PPP”) and who wanted to take revenge against him for reporting to the authorities of their attempt to cheat in their votes during a local election, 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 Sara-e-Alamgir, Nothia Qureshian, Gujrat, Pakistan. After leaving school he worked as a farmer in his home district, and supported PML(N) regularly attended their local meetings and activities. 3.In the 2002 local district election, while he together with his fellow PML(N) supporters were working in the party’s election campaign, the Applicant discovered 3 fellow villagers who were brothers and PPP supporters trying to cheat by casting their votes twice, and alerted the officials who then stopped the 3 brothers and took actions against them. As a result the 3 brothers became furious with the Applicant and swore to take revenge against him. 4.After PPP won that election, one evening the 3 brothers came to the Applicant’s home and shouted threats against him, and when they could not find him in the house, they broke inside and vandalized his home, and frightened his mother with threats to kill the Applicant if they found him. 5.As a result the Applicant became fearful for his safety and fled to Jhelum to take shelter in a friend’s place, but when the 3 brothers kept looking for him everywhere, the Applicant therefore departed Pakistan in December 2002 for Hong Kong where he overstayed, and upon his subsequent arrest by the police, he was then repatriated to Pakistan in May 2008. 6.Upon returning to his home district, the Applicant resumed his support for PML(N), however one day in 2008 he was ambushed by the 3 brothers who attacked him with wooden sticks and other weapons that his arms were fractured and suffered cuts and bruises all over his body. 7.After the attack the Applicant fled to Jhelum City and then Rawalpindi, and later when he heard that the 3 brothers had again come to his house in his home district looking for him, and also threatened his mother when she refused to disclose his whereabouts, the Applicant felt it was no longer safe to remain in Pakistan, and so on 22 December 2008 he departed Pakistan again and went to China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he 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 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 8.By a Notice of Decision dated 29 June 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”). 9.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 said 3 brothers or any PPP members upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of those 3 brothers to seriously harm or kill him or to still have any adverse interest in him after all these years since he left the county or of any PPP people to have any political reason or intention to harm him, that in any event it was a private dispute between the Applicant and the 3 brothers only 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 205 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 anyone to locate him. 10.On 9 July 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 19 September 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 December 2019, his appeal was dismissed by the Board which also confirmed the Director’s decision. 11.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those 3 brothers or any PPP people that caused him to leave Pakistan to come to Hong Kong to seek protection, that his lack of knowledge or incorrect information as to the political situations in Pakistan or of the political philosophy of PML(N) further undermined the credibility of his claim of alleged political involvement in Pakistan or of his alleged disputes with the 3 brothers over some election fraud in his home district back in 2002 that it concluded that there was no credibility in his claim at all that his application for non-refoulement protection failed on all applicable grounds. 12.On 30 December 2010 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 his supporting affirmation of the same date in which he just stated that he rejects the decision as it disregarded his dangerous situation in his home country but without providing any necessary or relevant details or particulars or elaboration as to how it did so, nor was he able to put forward any proper ground for his intended challenge at the hearing of his application. 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. 13.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. 14.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 41 – 52 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. 15.Furthermore, 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 even 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 agreed and 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. 16.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. 17.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application. Dated the 6th day of August 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
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Cases cited in this judgment