Amir Shahzad v. Director of Immigration

HCAL 297/2017

[2018] HKCFI 245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 297 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 43-year old Pakistani male who entered Hong Kong illegally from Shenzhen sometime in late 2013 and was arrested by police on 8 January 2014.  When he was subsequently referred to the Immigration Department for investigation he lodged his claim for non-refoulement protection on 12 January 2014 for fear that he would be harmed or killed by certain members of the Hazara community in Rawalpindi, Pakistan if he were to return to Pakistan.

2.The Hazara people live primarily in central Afghanistan but with significant communities also in Iran and Pakistan.  For those in Pakistan they live mainly in and around the city of Quetta located in the south western province of Baluchistan.

3.The applicant was born and raised in Raja Bazaar, Rawalpindi, Pakistan until he was 10 when his family moved to Qasim Market, Dhok Chaudriyan, Rawalpindi where he had lived until 2013 when he left Pakistan for Hong Kong.  He is single with both parents already passed away, but his 3 siblings are still living in Pakistan.

4.According to the applicant some Hazara people have moved into Rawalpindi years ago to form their own community, whom he described as rude and ill-mannered and loved to start a fight with no reason, and that the locals would try to avoid them, but one day in 1998 when the applicant was aged 23 a big fight broke out between his family and some of the Hazara people during which the applicant was chopped on his right chest causing severe bleeding with broken ribs, and was hospitalized for a week.  The police were involved with both sides accusing each other, and eventually at the suggestion of the police the matter was settled between the two parties.

5.However the applicant had since become fearful of the Hazara people and tried to hide from them by staying away with various relatives in different places, and in late 1999 he left Pakistan twice to come to Hong Kong, with the first time being deported after staying for only one day, and on the second occasion he stayed for one year before returning to Pakistan in 2000 to visit his mother during which there were no further incidents with the Hazara people, but the applicant remained fearful of them and therefore for the next 10 years or more he would take shelter in various countries in Africa until 2013 when he returned to Pakistan, but as his fear of the Hazara people still persisted, he decided to make his third trip to Hong Kong in late 2013 when on this occasion after he was arrested by the police he lodged his non-refoulement claim for protection on the ground of his fear of being harmed or killed by the Hazara people if he were to return to Pakistan notwithstanding his last and only hostile incident with them took place way back in 1998. 

6.By a Notice of Decision dated 22 December 2015 the Director of Immigration (“the Director”) rejected his claim on all then available grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the Hong Kong Bill of Rights (“HKBOR”) Ordinance, Cap 383 (“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”) upon finding that he had failed to establish his fear and that even if it still existed, internal relocation would be available and reasonable for him to safely return to Pakistan.

7.On 4 January 2016 the applicant lodged an appeal against that decision to the Torture Claims Appeal Board (“the Board”), but before his appeal was heard by the Board, he was invited by a letter from the Director dated 10 February 2017 to submit additional facts relevant to his claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any such additional facts from him, the Director by a Notice of Further Decision dated 28 February 2017 again rejected his claim.

8.Meanwhile the applicant attended an oral hearing before the Board on 8 March 2017 for his appeal but refused to give any evidence or to answer any question from the Adjudicator.  On 13 April 2017 the Board after having considered all the materials and information before it found that the applicant has failed to establish a case of non-refoulement whether under risks of torture or BOR 3 or BOR 2 or Persecution, a conclusion which it was able to reach independent of any finding as to the applicant’s credibility due to his refusal to answer any questions from the Adjudicator at the oral hearing which the Board regarded as significant to address its concerns over his claims and hence his credibility and reliability, and having considered the numerous objective COI before it the Board did not accept that “the handful of Hazara people of 19 years old are interested in locating the applicant all over Pakistan, and that is even if they should have huge resources and manpower, as well as are willing to expend same to look for a needle in a haystack.  And this is especially when the Appellant had experienced nothing hostile for the 5 years when still in Pakistan, including returning home to Raja Bazaar several times”, and concluded that there is no substantial risk or any substantial basis in the applicant’s fear, and that there are places in Pakistan at least other than his home locally where he can safely live without undue hardship.  The Board therefore dismissed his appeal and confirmed the Director’s decisions.      

9.The applicant filed his Form 86 for leave to apply for judicial review of that decision on 15 June 2017, and in his supporting affirmation of the same date he simply stated the following reason for his challenge:

“ I do not agree with the adjudicator’s decision. His decision defies logic. It did not take into account all the matters and did not examine the evidence produced thoroughly.”

10.In the absence of any further particulars or specifics, there is simply no basis or merits in the applicant’s submission that the Adjudicator’s decision defies logic, a decision which the Board was certainly entitled to and did in my judgment correctly reach in the absence of any evidence other than the applicant’s own bare assertion, of which he refused to verify at the oral hearing, that his fear of some Hazara people still persists due to an isolated incident, albeit violent, which happened almost 20 years ago and when there have since been no further hostile incidents involving him. Upon rigorous examination and anxious scrutiny of the Board’s decision, I am satisfied that the Board has taken into account all the relevant matters and fully and thoroughly examined the evidence before it, and there is no justification at all in the applicant’s complaints when he himself refused to make use of the oral hearing afforded to him to prove his case orally or with additional documentary evidence.

11.In the premises and for the reasons given, I do not find any ground that shows any error in law or procedural unfairness in the decision of either the Director or the Board, or any failure on their part to apply a high standard of fairness in their assessment of the applicant’s claim.  Therefore I am not satisfied that his intended application for judicial review is reasonably arguable, and accordingly I refuse his leave application.

Dated the 8th day of February 2018.

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