Asid Iqbal v. Director of Immigration and Others

HCAL 28/2018

[2018] HKCFI 2048

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 28 of 2018

BETWEEN

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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 33-year-old national of Pakistan who entered Hong Kong illegally on 20 August 2007 and was arrested by police on 21 January 2008.  After being referred to the Immigration Department for investigation, he lodged a torture claim with the Department on the basis that if he returned to Pakistan he would be harmed or killed by members of rival political party Pakistan Peoples Party (“PPP”) and by the family of a murdered victim in revenge.  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in District Mandi Bahauddin, Tehsil Malikwal, Punjab, Pakistan.  After leaving school he operated a barber shop and became a supporter of Pakistan Muslim League (Nawaz) (“PML-N”) and regularly put up posters and distributed leaflets for the party in his neighbourhood and also by allowing the party to use his shop for their meetings and election campaigns.

3.One day in July 2007 whilst the applicant was with his friend ZB in his barber shop, a fellow villager AJ came in and accused him of helping PML-N and for allowing the party to use his shop in their plot to assassinate former Prime Minister Benazir Bhutto, and proceeded to attack him during which ZB tried to intervene but the applicant was knocked unconscious.  Upon regaining consciousness in the hospital, he was told by the police that AJ had been killed, that ZB had disappeared and that he had been held in custody for investigation.

4.After his discharge from the hospital the applicant was detained in the local police station during which he was interrogated by the police over the murder of AJ as well as his involvement in the assassination of Bhutto for which PPP had blamed PML-N, and the applicant suspected that it was the PPP people who sent AJ to accuse him of allowing the PML-N members to use his shop to plot the assassination and that the police were influenced by them to arrest him.

5.After being detained for more than a week the applicant was finally released by the police without charge after his father had hired a lawyer to put up bail for him, but as he was concerned for his safety, he took shelter at his brother-in-law’s place in Jaura Karnana, but when he heard that some men from PPP were looking for him there, he fled to Islamabad where he departed Pakistan on 14 August 2007 for China, and from there he subsequently sneaked into Hong Kong and raised his torture claim which was later taken as a non-refoulement claim under the Unified Screening Mechanism, for which he completed a Non-refoulement Claim Form (“NCF”) on 10 January 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 1 September 2015 the Director of Immigration (“the 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 torture or cruel, inhuman or degrading treatment or punishment 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”).

7.In his decision the Director found the applicant’s claim that he left Pakistan to avoid the pursuit of PPP members and the police for his involvement in the assassination of Bhutto as inherently impossible and incredible as Bhutto was in fact assassinated on 27 December 2007 which was more than five months after his detention and interrogation by the police in July 2007 over her assassination, and four month after he left Pakistan, that there is no evidence that AJ had in fact been murdered and that even on his own case there is no evidence of any attempt by his family to seek revenge against him and hence his such fear is all based on his own perception and speculation, and concluded that there were no substantial grounds for believing that he will be subject to any risk of harm upon his return to Pakistan.     

8.By a Notice of Further Decision dated 4 September 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts 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”).

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, which appeal he filed on 15 September 2015, and for which he attended an oral hearing on 14 November 2017 before the Board during which he insisted that he had nothing further to add to the information which he had already provided in the hearing bundle and declined to give any further evidence despite being invited and advised by the adjudicator to do so in order to clarify serious inconsistencies and discrepancies found in those information provided in the bundle.  On 29 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board also found serious inconsistencies and discrepancies in the applicant’s information provided by him in his NCF and in his answers to the questionnaire raised during his screening process before the Immigration Department, that he refused or was unable to give any response when he was asked by the adjudicator to explain the apparent inherent impossibility of his claim of being pursued by the PPP people and the police over the assassination of Bhutto which only took place more than four months after he had come to Hong Kong, that looking at his claim as a whole and in the absence of any oral evidence from him that it is difficult to avoid the conclusion that he has fabricated the entire basis of his claim from the beginning, and that in the circumstances the only conclusion to be drawn is that he has failed to establish that there is a real risk that he will suffer ill-treatment of any sort if he is refouled to Pakistan.  

11.On 5 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it he put forward various grounds for his intended challenge which can be summarized as follows:

(1)  that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence of the torture of the applicant by the police in the consideration of his claim;

(2)  that the Director failed to consider or give sufficient weight to the relevant COI on the inability of the police in Pakistan to protect its citizens in the consideration of his claim;

(3)  that the Director was being unfairly and improperly selective in the use of COI against his claim and failed to find that corruption and incompetency in the administration is still a very serious problem in Pakistan in the consideration of his claim;

(4)  that the Director failed to apply high standard of fairness in the consideration of his claim; and

(5)  that the adjudicator failed to make sufficient enquiry before finalizing his decision and failed to give sufficient chance to the applicant to arrange relevant evidence to support his non-refoulement claim and in his appeal.   

12.These are however mostly just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the director or the adjudicator had erred in their decisions, or in what way did the Director fail to take into account of relevant COI or being selective or improperly relied on irrelevant COI, or how did the adjudicator fail to make sufficient enquiry or fail to give him sufficient opportunity to provide evidence in support of his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13.As to the two additional COI of reports on police corruptions and violations of human rights in Pakistan exhibited to his supporting affirmation of the same date which were never put before the Director or the Board, and of which again the applicant never elaborated as to how they applied to his claim, as the mere existence of a constant pattern of gross, flagrant or mass violation of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return: see Re RS CACV 206/2012, 20 August 2013; and Re Fitri Ambarwati and Maria Zubair [2018] HKCA 461.

14.The fact is that the applicant’s claim was rejected by both the Director and the Board essentially on his credibility based on their evaluation of all the evidence available before them and which they were entitled to do, as it has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, that the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, for which the court will not usurp their role as primary decision makers, and in the absence of any legal error or procedural unfairness or irrationality being identified by the applicant in the decisions, judicial review is not to be treated as an avenue for revisiting the assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.     

15.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.

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

Dated the 14^th day of September 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