Saif-ur-rehman v. Director of Immigration and Another

HCAL 255/2018

[2018] HKCFI 2805

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 255 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 23 August 2013 and was arrested by police on 26 August 2013.  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 his uncles over a land dispute.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Momin Pur, Tehsil Hazro, District Attock, Punjab, Pakistan.  After leaving school he first worked as a farmer and later as a mason in Libya.

3.Upon his return from Libya and resumed working as a farmer, his parents in 2012 decided to transfer their farmland in the village to him, which was however coveted by his four uncles who were all wealthy landowners and well connected politically with the then ruling party Pakistan Muslim League (N) (“PML(N)”), and when they made various offers to buy his land, they were all rejected by the applicant as unreasonably low.

4.One day in May 2013 while the applicant was working in his farmland, his uncles came onto his land and threatened him that his rejection of their offers would not end well for him.  The applicant was terrified by their threats and went home.

5.About a week later his uncles and their sons again came onto the applicant’s land whilst he was working and assaulted him with wooden sticks and iron rods until they were intervened by other villagers, and before they left they threatened that they would kill him if they were unable to get his land.  As a result the applicant was taken to the local hospital for treatments.

6.Afterwards the applicant made a report to the local police, but after a month and when there did not seem to be any progress with their investigation, the applicant decided that it was no longer safe for him to remain in Pakistan, and therefore departed on 8 July 2013 for China, and from there he subsequently sneaked into Hong Kong and raised his non-refoulement claim, for which he later completed a Non-refoulement Chaim Form on 26 September 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 8 November 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

8.In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the risk of harm from his uncles to the applicant upon his return to as low due to the low intensity and frequency of ill-treatment in the past, that in any event it was a private family dispute and in the absence 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 show that reasonable internal relocation alternatives are available in Pakistan with a large population of 202 million people spread across a vast territory that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other areas away from his home district such as Lahore or Islamabad where it would be difficult if not impossible for his uncles to locate him.

9.On 14 November 2016 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 21 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 4 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board after having heard the applicant in evidence found numerous inconsistencies in his claim about the transfer of his father’s land to him, and did not accept that the land became the subject of a dispute between him and his uncles or that he was ever threatened or harmed by his uncles or that he genuinely fears harm from them, and concluded that he has fabricated the entirety of his claim that he has failed to establish that there are substantial or strong grounds or a real risk that he will be harmed by his uncles under any applicable grounds upon his return to Pakistan.  

11.On 15 February 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 the following grounds for his intended challenge:

(1)  that the Director and the adjudicator reached the wrong decisions in assessing his USM claim;

(2)  that their decisions were unreasonable and unfair under the Wednesbury test;

(3)  that their decisions failed to take into account that right to life must be protected from extra-judicial killings which he may face if deported to Pakistan; and

(4)  that the adjudicator failed to give him sufficient time and chance to arrange relevant evidence for his non-refoulement claim and his appeal.  

12.These are however all 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 Board had erred in their decisions, or in what way were their decisions unfair or unreasonable, or how was the risk of extra-judicial killings relevant to his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13.The applicant’s claim was rejected essentially on his credibility after the adjudicator had had the benefit of hearing him in evidence and then proceeded to properly and carefully considered, analyzed and evaluated them in paragraphs 7 – 39 of her decision; that in the absence of any legal or factual errors being identified by the applicant, and having myself rigorously examined them I do not find any fault in her assessment of the applicant’s evidence.     

14.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 or procedural unfairness or irrationality in their decisions being clearly and properly 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.

15.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.

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 3^rd day of January 2019.

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