Khan Jan Muhammad v. Director of Immigration and Another

HCAL 218/2017

[2018] HKCFI 621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 218 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 47-year old Pakistani man who entered Hong Kong illegally on23 April 2014 and was arrested by police on 24 April 2014.  On the following day he wasreferred to the Immigration Department for investigation, and on 26 April 2014 he raiseda non-refoulement claim with the Department on the basis that if he is to return to Pakistanhe would be harmed or killed by the family of his former sister-in-law for being involved in her divorce dispute with her husband.

2.The applicant was born and raised in Village Kamalpur Musa, Tehsil and District Attock, Punjab, Pakistan.  After receiving two years of formal education, he did farming and mechanical work for a living before moving to live and work in Karachi where he subsequently bought a house and where some of his brothers also lived.  In 2008 he left Pakistan to avoid a land dispute for Hong Kong where he met his present wife, a Hong Kong resident whom he married in May 2011 on his return to Pakistan after the land dispute was resolved.

3.One day in early 2013 he accompanied his youngest brother SK to the local court inAttock for the hearing of his divorce filed by his wife RB during which her father accused him of meddling in his daughter’s divorce and threatened to take revenge against him. The applicant was concerned about the threat as RB’s family are wealthy landowners in their village and as he heard that her father has close connection with the ruling political party Pakistan Muslim League, but he did not report the matter to the police because of the influence of RB’s family.

4.About two weeks after that incident the applicant ran into some family members of RB at a bus stop and was threatened by them again before they were separated by other passers-by and he was able to leave the scene.  On the following day he returned to Karachi while his brother SK subsequently left Pakistan for UK after his divorce with RBhad concluded without further incidents.  Whilst in Karachi the applicant encountered no further problems with RB’s family until around August 2013 when he was told by two men that her family was still looking for him.  He therefore decided for his own safety to leave Pakistan and on 9 October 2013 he left for Mainland China where he stayed for a month until his visa expired and returned to Pakistan where he hid in his friend’s place in Rawalpindi which is about two hours ride from his hometown.

5.For the next several months he remained hiding in his friend’s place in Rawalpindiduring which he encountered no further problems from RB’s family, but as he still wanted to leave Pakistan, he eventually flew out on 21 April 2014 for Guangzhou where he paid RMB 3,000 to be smuggled into Hong Kong from Shenzhen on 23 April 2014, and later lodged his non-refoulement claim with the Immigration Department which he subsequentlyre-submitted his Non-refoulement Claim Form on 23 February 2016 with the assistance of the Duty Lawyer Service. 

6.His claim was rejected by the Director of Immigration by his Notice of Decision dated 13 April 2016 on all then applicable 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 under Article 3 of section 8 of the Hong Kong Billof Rights 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”).

7.In his detailed decision the Director carefully considered the applicant’s claim on the basis that the threats from RB’s family were true but assessed that even on his own evidence the risks that he would be harmed by her family if he is to return to Pakistan would be very low, that in the absence of any more solid evidence other than what he may have heard about the influence of her family, proper state protection would be available to further lower or negate the risk, that objective Country of Origin Information (“COI”) reports show that the Pakistani government has taken practical steps to improve police effectiveness and monitor their conduct, and that internal relocation alternatives are available and reasonable in the applicant’s circumstances such as in Karachi where he usedto live and work, or other parts of Pakistan with a population of over 199 million and in avast territory of more than 796,000 square kilometers that it is most unlikely that he wouldbe located by RB’s family no matter how influential they may be.  Accordingly it was notaccepted by the Director that the applicant has any genuine or substantial risk under BOR 3or any persecution risk or torture risk, and hence his non-refoulement claim was dismissed.  

8.By a Notice of Further Decision dated 29 March 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier letter dated 28 February 2017 inviting him to submit additional facts which he may have relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any absolute and non-derogable rights under the Hong Kong Bill of Rights including right to life under Article 2 (“BOR 2 risk”).

9.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the appeal of which he filed on 18 April 2016, and for which he attended in person before the Board on 5 April 2017 during which he gave evidence and answered questions put to him by the Board through a Punjabi interpreter.  On 21 April 2017 his appeal was dismissed by the Board which also confirmed the two decisions of the Director.

10.In its careful and detailed decision and in accepting all the evidence from the applicant about the threats from RB’s family as true, the Board found that there is no real risk of him being harmed or killed if he is to return to Pakistan, as it was of the view that if RB’s father had seriously wished to harm the applicant, and could do so with impunity, he would have done so during the two weeks following the divorce hearing in September 2013 when the applicant was staying in his home village, or during the various periods when he was staying in Karachi and Rawalpindi, and that it is inherently unlikely that RB’s father would still maintain a grudge against the applicant for more than four years after the divorce hearing of proceedings instigated by his daughter against SK and which was subsequently resolved without further problems.

11.On 19 May 2017 the applicant filed his Form 86 for leave to apply for judicial review of those decisions of the Director and the Board, and from his supporting affirmation of the same date, which he prepared in person, it seems to me that he is relying on the following main grounds for his intended challenge:

(a) lack of opportunity to produce additional information as he did not receive the letter from the Director inviting him to do so regarding BOR 2 risk; and

(b) the Board was selective in its reliance on COI and failed to address the negative aspects especially those about corruption of police in Pakistan, and hence there is procedural unfairness. 

12.For the first ground, the evidence is that he did receive the letter dated 28 February 2017 from the Immigration Department inviting him to submit additional information relevant to his non-refoulement claim on all applicable grounds including those under BOR 2 risk, as he so confirmed when he appeared before the Board on 5 April 2017 in the appeal, as it was stated in its decision as follows:

“ 14. The Applicant said that although he had received the letter from the Immigration Department dated 28 February 2017, he had not received the Notice of Further decision dated 29 March 2017. I explained to him that since the department had not received any reply from him to their letter of 28 February 2017, by 14 march 2017, the date specified in that letter, the Department had gone on to consider there was a real risk that any of the Applicant’s absolute and non-derogable rights under the Hong Kong Bill ofRights Ordinance (including the right to life under BOR 2) would be violated if he returned to Pakistan and concluded that they would not. I said that I would be considering his appeal and petition on all applicable grounds, including the right to life under BOR 2, and that it was not necessary for him to file a separate and further petition in relation to the Further Decision of the Department.”

13.It is therefore clear to me that having received the letter inviting him to submit additional information relating to BOR 2 risk, the applicant never submitted any such information to the Director, and when he later appeared before the Board when he again had had the opportunity to do so or to advance his case further and fully on BOR 2 risk, but again he never did so.  At any rate both the Director and the Board did go on to properly consider his claim under BOR 2 risk and found none has been established by the applicant should he return to Pakistan.  There is therefore in my judgment no merit at all in this ground of the applicant. 

14.As regard the use of COI, in the absence of any particulars or specifics from the applicant as to how the Board has been selective in its use, it is therefore not clear in what way or manner is he claiming procedural unfairness in this regard, but in going through the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I am satisfied that both of them did give due and proper consideration of objective and varied up-to-date materials of reliable and reputable international standard, some of which did corroborate the applicant’s case but others supported their findings that there is state protection available if any risk arises for the applicant, and that it would be reasonable in the circumstances of his case to return to live and work safely in Pakistan away from his hometown such as Karachi where he had lived for a considerable period before and where it is virtually impossible for RB’s family to locate him even assuming the unlikely situation that they still hold any grudge against him given that RB’s divorce with his brother has been resolved more than four years ago, as the Board rightly pointed out.

15.The very broad statement of the applicant about the corruption of police in Pakistandoes not assist his case as the Board has found, and rightly so on the applicant’s own case,that the risk from RB’s family is a localized one with no evidence that the local police was involved, let alone one of the state or a “state agent”, as pointed out by Cheung CJHC in his judgment in TK v Michael Jenkins CACV 286/2011:

“ 32. Fourthly, the question of internal relocation (otherwise known as ‘internal flight’). This is a concept common to refugee law and torture claims. The rational is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the ‘internal relocation alternative’), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT.

33. There may be different reasons why the risk of torture is a localised one.  For instance, where the torturer is not the state or a ‘state agent’, he may not be prepared, willing or able to pursue the claimant outside of the local place in question or to the internal relocation alternative(s) concerned.  Or meaningful state protection against the risk of torture is available to the claimant outside of the local place in question or in the internal relocation alternative(s) where the risk of torture is non-existent or insubstantial.  If the risk of torture is for one reason or another a localised one, one must move on to ask whether it is reasonable to expect the torture claimant to relocate to the alternative place or any of the alternative places under consideration or whether it would be unduly harsh to expect him to do so.”

16.This is exactly what the Board has done in its consideration of the applicant’s claim and in arriving at its conclusion on the availability of reasonable internal relocation alternatives to the applicant.  Accordingly, I do not see any error in law or procedural unfairness in its decision, or for that matter in the Director’s, or any failure on their part to apply a high standard of fairness in their assessment of his claim.

17.In the premises and for these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.

Dated the 20^th day of March 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