Akhtar Nabeel v. Director of Immigration

HCAL 337/2017

[2018] HKCFI 791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 337 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 36-year-old Pakistani man who entered Hong Kong illegally in about May 2011 and was subsequently arrested by police and was on 19 October 2011 referred to the Immigration Department for investigation. On 23 October 2011 he lodged a torture claim on the ground that he would be killed by two brothers NA and MA from his village for being a witness to their murder of a fellow villager HF if he is to return to Pakistan.  On 24 November 2011 he was released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Gillchal, P.O. Falora, Tehsil Pasroor, District Sialkot, Pakistan where his mother and his three sisters still live with his father having passed away.  His brother now lives in Cyprus.  Upon completing some formal education he started working in various odd jobs including as a sewing worker for more than 10 years.

3.On evening in 2011 while chatting with some friends behind the house of the villager HF, the applicant saw NA and MA, who were known criminals involved in drugs, thefts, robberies and extortions, climbed over the wall of HF’s house with some men and shortly thereafter he heard gun shots inside the house.  When he rushed in he found HF dead on the floor.  Later when HF’s sons arrived at the scene and the villagers started gathering around HF’s house, the applicant told them what he saw about NA and MA entering HF’s house suspiciously shortly before the gun shots and his belief that it was they who murdered HF, hoping that they would inform the police accordingly in the investigation.

4.However, a few days later NA and MA with their men appeared with guns and fired shots towards the applicant’s house threatening to kill anyone for being an informant to the police.  Afterwards the applicant was advised by his family to stay away for his own safety, so he took up shelter at his uncle’s place in Sialkot which was some 30 km away, but when he was later told that NA and MA kept going to his home looking for him and threatened to kill him when they found him, he became very concerned and took the advice of his friend to leave Pakistan on 14 May 2011 for China and from Shenzhen he sneaked into Hong Kong where he later raised his torture claim with the Immigration Department, and which was subsequently taken as a non-refoulement claim upon the commencement of the unified screening mechanism in 2014 and was assessed as such under that scheme.

5.By a Notice of Decision dated 29 June 2015 the Director of Immigration (“the Director”) rejected the applicant’s 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 the risk of harm which the applicant would face from NA and MA as very slim on the basis of his own evidence that the brothers have since moved their criminal activities to Afghanistan, that objective Country of Origin Information (“COI”) show that state protections are available and that reforms have been on-going in Pakistan to improve government’s effectiveness and to deal with police corruptions, and that even if the risk from NA and MA to the applicant still persists in his hometown, internal relocation alternatives are available and reasonable for him to return to other areas of Pakistan which has a large population of 196 million people spread over a vast territory of more than 796,000 square kilometers, such as Karachi where he can live and work safely and free from any risk from the two brothers.  The Director therefore concluded that the applicant has failed to establish his claim on all the applicable grounds and therefore refused his non-refoulement protection. 

7.By a Notice of Further Decision dated 3 November 2016 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 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 13 July 2015, and for which he attended an oral hearing before the Board on 9 December 2016 but elected not to give any evidence.  On 23 March 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found the applicant’s account of his fear of being harmed or killed by NA and MA as being not credible, but that even if it is true or genuine, it agreed with the Director that objective COI show positive justice reforms in Pakistan, that state protection is available as well as internal relocation alternatives that it would not be unduly harsh for the applicant to return to establish himself in other parts of Pakistan away from his home village or the threats of the NA brothers.

10.Nevertheless on 22 June 2017 the applicant saw fit to file his Form 86 for leave to apply for judicial review of the Director’s decisions but did not provide any grounds for his application, and in his supporting affirmation of the same date he merely stated this:

“ Ground will be provided later after we hire my legal representative.”

11.However, he has since not submitted anything further to court and as such there is no ground put forward by him at all for his intended challenge by judicial review, and having considered both the decisions of the Director and the Board with rigorous examination and anxious scrutiny, neither do I find any ground or reason to suggest that the Director or the Board has committed any error in law or procedural unfairness in either of their decision, or any failure to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  Both have applied the same established principles and the correct law and relevant criteria with the same care and high standards of fairness in their consideration of his claim, and the applicant was given every opportunity to state his case and to present his evidence.  I am simply unable to see any basis or merit in any criticism of either the Director or the Board in the process.  

12.In the premises 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