Mahmood Rashid v. Director of Immigration

HCAL 346/2017

[2018] HKCFI 792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 346 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 30-year-old Pakistani man who entered Hong Kong illegally in about March 2012 and was arrested by the police on 15 June 2012.  On the following day he was referred to the Immigration Department for investigation, and on 17 June 2012 he lodged a torture claim with the Department for protection on the basis that he would be killed by a man for having witnessed him murdering another man in his home village if he is to return to Pakistan.  On 19 July 2012 he was released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Kasgumma, District Bhimber, Azad Kashmir, Pakistan where his parents still live.  After he left school he eventually found work in 2000 as a farmer.  One day in about January 2012 when he was on his way home after work, he saw two men arguing in the village.  He was not acquainted with either but knew their name.  The two men soon broke into a fight when one of them drew a gun and shot and killed the other man.  The murderer saw the applicant and then ran away.  When the police arrived the applicant did not tell them what he saw and instead he just went home.

3.A few days later the brother of the victim approached the applicant to ask him to be a witness in the murder case to which he agreed.  However, in the same evening the murderer also came to his home and threatened him not to say anything about the killing and that he should leave the country or else he would kill him too.  Two or three days later the man returned to make the same threat against the applicant that he should leave the country as soon as possible.  As the applicant had heard about the man being a gangster involved in drugs and extortions activities and with connection with the Pakistani People’s Party which was the ruling party in his home district, he became fearful for his life but did not report the threat or the murder to the police as he considered them corrupt, hence he decided to leave Pakistan for China because it would not be expensive to live there.

4.On 27 February 2012 the applicant flew to China where he was advised by his fellow countrymen to apply for human rights protection in Hong Kong, and so on 3 March 2012 he sneaked into Hong Kong from Shenzhen, and after being arrested by the police he first raised his torture claim on 17 June 2012, but upon the commencement of the unified screening mechanism on 3 March 2014 and in completing his Non-refoulement Claim Form (“NCF”) on 26 June 2015, his claim was taken to be a non-refoulement claim and was assessed accordingly under that scheme by the Director of the Immigration (“the Director”).

5.By a Notice of Decision dated 2 October 2015 the Director rejected his claim 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 (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), 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”).

6.In his detailed decision the Director assessed that on the applicant’s own evidence the likelihood of him being subjected to any real risk of harm from the alleged murderer is low, that state protection is available to him in the absence of any evidence to suggest that the police was involved in the alleged murder or any failure on their part to conduct proper investigation, that objective Country of Origin Information (“COI”) show that whilst there is police corruption in Pakistan, the government has taken effective steps to monitor the conduct of the police and to improve their efficiency, that even putting the applicant’s case at the highest there is nothing to suggest that the alleged murderer could have nationwide influence or ability to locate him in Pakistan with such a large population of 199 million people spread over a vast territory of more than 796,000 square kilometers, and that internal relocation alternatives are available that it would not be unduly harsh for the applicant as an able-body young man to return to his own country in areas away from his hometown such as Islamabad where he can live and work safely and free from any threats from the alleged murderer.

7.By a Notice of Further Decision dated 24 February 2017 the Director rejected the applicant’s claim again in the absence of any response from him to an earlier invitation to submit any additional information which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”). 

8.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, which appeal he filed on 12 October 2015, and for which he attended in person an oral hearing before the Board on 22 March 2017 when he gave evidence and answered questions raised by the Board.  On 13 April 2017 his appeal was dismissed by the Board which confirmed the Director’s decisions.

9.In its decision the Board found the applicant’s evidence in relation to the events leading to the killing very vague general in nature and lack of the details which might be expected from someone who had witnessed such a memorable event as a murder, and that upon questioning, the core of his evidence lacks credibility to the extent that his story becomes fanciful and implausible, and when confronted with the inconsistencies between his oral evidence and what he had stated in his NCF and during his interview by the Immigration Officer, he became evasive and simply blamed it on loss of memory over the passage of time.

10.In addition the Board also found that much of the applicant’s case amounts to no more than assertions of fact which are not within his own knowledge but based solely on what he claims to have been told by others, such as his assertion that the murderer had connections with the Pakistan People’s Party which is based on what he described as rumors from the village, and decided not to attach any weight to his evidence insofar as it amounts to hearsay or speculation which is not supported by any other credible evidence.

11.The Board concluded that on the totality of the evidence it was not persuaded that the applicant witnessed the murder as asserted or at all, or that he was ever asked to be a witness in a case arising out of such a killing, or that he had received death threats from the alleged murderer as he asserts or at all, and hence he has failed to establish even to the low standard applicable that there is a real chance that he would be subjected to any form of ill-treatment if he is refouled to Pakistan.

12.Nevertheless the applicant on 30 June 2017 filed his Form 86 for leave to apply for judicial review of the Director’s decision, but did not put forward any ground in the form in support of his intended challenge, whilst in his supporting affirmation of the same date he merely stated this:

“ I am not satisfied with the Decision made by the Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office. The Director of Immigration has not taken into account all the facts while consideration into my case.”

13.These are just bold and vague statements and not grounds of review.  Nevertheless I proceeded to examine the decisions of both the Director and the Board with rigorous examination and anxious scrutiny for any evidence of error or unfairness in law or in procedure in their assessments of the applicant’s claim.

14.It is clear that both the Director and the Board have considered the claim on all applicable grounds and applied all relevant criteria, engaged in a joint endeavour with the applicant with ample opportunities for him to state his case and present his evidence throughout the entire process, and enquired into them and all the relevant COI objectively and appropriately.  I am simply unable to see any error in law or procedural unfairness in either of their decision, or any failure on their part to apply high standards of fairness in their assessment of their consideration and assessment of the applicant’s claim.

15.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 April 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