Ali Majid v. Director of Immigration

HCAL 1064/2017

[2018] HKCFI 2128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1064 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 26-year-old national of Pakistan who entered Hong Kong illegally on 2 December 2013 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the family of the person whom he allegedly killed in a fatal traffic accident.  He has since been released on recognizance pending the determination of his claim.

2.The fatal accident occurred in about September 2013 in Pakistan while the applicant was working driving his taxi to the airport to pick up a passenger when his taxi collided with a motorcycle on the highway and the motorcyclist was thrown onto the road.

3.When the applicant got off his taxi and found the motorcyclist seriously injured in the legs, he hailed a passing taxi for it to take the injured young man to the hospital while he drove his taxi back to the taxi company to report the matter to his employer who was upset about the accident and told him to go away.

4.Upon returning home the applicant told his mother that he was concerned about the consequences of the accident and that he would stay away for a while, and so on the following day he went to Lahore where he stayed in a hotel and kept in contact with his family by telephone. After a few days he was informed by his family that the motorcyclist had subsequently died from his injuries in the hospital, and after obtaining the information from the applicant’s employer, the victim’s father and other members of his family managed to find out the applicant’s identity and had come to his home looking for him, and when he was not there they threatened his family that they would kill him when they found him.

5.The applicant therefore returned to his home village and went to seek help from the local police, but was told that there was nothing for them to do as the victim’s family had not filed any case with them.

6.The applicant then went to stay at his friend’s place in a nearby village.  One day while he was on his way to Panda, he was spotted by the victim’s family members who started to throw stones at him but he managed to escape, and when he later learnt that the victim’s family was rich and powerful with political connection with the ruling party Pakistan Peoples Party, he became concerned for his safety and took shelter at a friend’s place in Attock, but one day when he was riding his friend’s motorcycle he was shot at by several men from behind but they missed him and only hit the motorcycle.

7.Fearing that he had been spotted in Attock, he therefore fled to Islamabad on the next day where he stayed in a hotel, but when he noticed that he had been watched and monitored by some men, he then fled to Lahore where he was advised by his friend that he should leave Pakistan to seek protection in Hong Kong, and so he left for Karachi and departed on 28 November 2013 for China, and from there he sneaked into Hong Kong and subsequently lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 13 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.By a Notice of Decision dated 13 May 2016 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 the Hong Kong Bill of Rights (“HKBOR”) (“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”).

9.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no evidential basis to suggest that his perceived risk is likely to materialize upon his return to Pakistan, as there is not a single piece of evidence of the alleged accident or the death of the motorcyclist, that the alleged threats from the victim’s family were all based on hearsay, that the absence of any evidence of official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man with work experience to move to other area away from his home district such as Karachi, Islamabad or Lahore where it would be difficult if not impossible for the victim’s family to locate him.

10.By a Notice of Further Decision dated 16 March 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”).

11.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 23 May 2016, and for which he attended an oral hearing on 22 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 24 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board upon hearing the applicant in evidence found it to be internally inconsistent with his claim which raised serious concerns about his overall credibility that it did not accept that he was ever involved in a fatal traffic accident or that the family of the alleged victim pursued him, and found that he does not engage non-refoulement protection in Hong Kong, and that even if it had reached a different conclusion on the facts, it would have found that the applicant could have relocated within Pakistan given its large population and vast territory in large cities such as Karachi or Islamabad on the basis of reliable COI where he could live safely without the fear of being located by his perceived enemy.

13.On 13 December 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he simply deposed that:

“ I want to judicial review the refusal decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office. The decision is unfair and unreasonable.”

14.On 7 June 2018 he filed a written submission with the following arguments:

(1) that he was not aware of the earlier invitation by the Director for him to submit additional facts relevant to his claim under BOR 2 risk, and as by then he no longer had any legal representation from the Duty Lawyer Service, he was therefore deprived of the opportunity to put forward his representation for his such claim before it was rejected by the Director;

(2) that he never received the Director’s Further Decision in rejecting his claim under BOR 2 risk, and hence it was unfair for the Board in his subsequent appeal to determine his claim under all applicable grounds including BOR 2 risk when he never had the opportunity of making his representation for such claim before the Director or the Board; and

(3) that the adjudicator wrongly exercised her case management power by putting undueweight on his credibility for rejecting his account of the accident in particular as tothe victim’s injuries and her criticism of his action in taking the victim to the hospital by taxi instead of an ambulance as being too harsh and unfair in the circumstances of the accident.

15.I shall therefore proceed to consider his sole ground for challenging the Board’s decision as being unfair and unreasonable on the basis of these complaints as set out in his written submission.

16.For his first complaint of not being legally represented and hence was unable to submit additional facts or make proper representation for his claim under BOR 2 risk to the Director, firstly, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

17.The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  If indeed it is true that he never received the letter from the Director inviting him to submit additional facts relevant to his claim under BOR 2 risk and was thereby deprived of the opportunity to present his claim under BOR 2 risk or to submit additional materials to support the claim, of which he did not provide any explanation as to why he was not aware of the Director’s invitation or any proof that he indeed did not receive it, he never raised any such issue at his appeal hearing before the Board, which of course brings me to his second complaint. 

18.For his second complaint that he also never received the Director’s Further Decision in rejecting his claim under BOR 2 risk, he was therefore not aware that his claim under BOR 2 risk would be considered by the Board and hence no representation was made by him for his claim under BOR 2 risk before the Board, again there is no evidence from him in support of such claim that he did not receive the Director’s Further Decision rejecting his claim under BOR 2 risk, but even if that was again indeed the case at the time, he would have become aware of it from the hearing bundle for his appeal which would have been provided to him prior to his oral hearing before the Board, and for which he could have raised issue about it with the adjudicator or requested for further time to enable him to make the necessary representation for his claim under BOR 2 risk or to provide additional supportive materials.  He did none of these, and even now in his application before me at his oral hearing he did not make any further representation for his claim under BOR 2 risk.  In the premises I do not find any merit in either of these complaints of the applicant.

19.As for his criticism of the adjudicator’s findings over his credibility, of which the adjudicator gave detailed analysis and reasons for her evaluation of the evidence and her findings of fact in paragraphs 27 – 40 of the Board’s decision, in which I am unable to detect any faults upon careful examination, and that having heard the applicant in evidence about his alleged traffic accident, the adjudicator was certainly entitled to make her evaluation as detailed in those passages.

20.As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error being identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

21.Further, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

22.In the premises and having proceeded to consider 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.

23.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 5^th day of October 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