Israr Muhammad v. Torture Claims Appeal Board

HCAL 592/2017

[2025] HKCFI 459

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 592 OF 2017

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 8 January 2009 and was arrested by police on 10 March 2009. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by 2 robbers or their families for having witnessed their crime and assisted the police for their arrest. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Mohallah, Gujranwala, Punjab, Pakistan. After leaving school he worked in the factory to make his living in his home district.

3.One day in 2008 he accompanied his uncle to Kangnee Wala when on the way they were robbed by 2 men at gunpoint, during which they shot and killed his uncle before fleeing from the scene.

4.With the help of the information provided by the Applicant, the police subsequently arrested one of the robbers who was later convicted and given a death sentence, whereupon the robber’s family made threats against the Applicant in revenge, and with the other robber still at large, the Applicant became fearful for his safety, and as he felt that it was not safe to remain in the country, he therefore departed Pakistan on 6 January 2009 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 15 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 7 January 2015 and a Notice of Further Decision dated 26 October 2016 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 family of the convicted robber or from the other robber at large 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 either of them to seriously harm or kill him other than some empty threats or the Applicant’s own speculation, that in any event in the absence of 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 196 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 where it would be difficult if not impossible for anyone to locate him.

7.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 25 January 2017 but elected not to give any further evidence after adopting those set out in the information and materials earlier provided by him to the Director, whereupon the Board proceeded to deal with his appeal on paper based on the information contained in the hearing bundle available before the Board. On 18 August 2017 his appeal was dismissed by the Board which also confirmed the Director’s decisions.

8.In its decision the Board found no reliable evidence of any real threats from the robbers or their families other than some empty threats or the Applicant’s own speculations in the absence of any ill-treatments from any of them that it is not accepted that the Applicant will face any such threats or risk upon his return to Pakistan, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to that it concluded that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 7 September 2017 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, and in his supporting affirmation of the same date he just made bare assertions that the Board erred in assessing his claim without any relevant or necessary details or particulars or elaboration as to how it did so, nor did he request any oral hearing for 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 of the Board’s decision.

10.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.

11.In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision, 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 findings of the Board.

12.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 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.                

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 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.

15.As the Court has subsequently been informed by the Immigration Department that the Applicant has since been removed from Hong Kong, I therefore direct that a request be made to the Director to make his best endeavor to forward a copy of this decision together with the sealed order to the Applicant in Pakistan.

Dated the 13^th day of February 2025

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