Bilal v. Director of Immigration and Another

HCAL 318/2018

[2018] HKCFI 2809

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 318 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 25-year-old national of Pakistan who entered Hong Kong illegally on 18 September 2015 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 certain supporters of rival political party Pakistan Tehreek-e-Insaf (“PTI”).  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Kemari, Karachi, Pakistan where he worked as a salesman and became a supporter of Pakistan Muslim League-N (“PML-N”) regularly putting up posters and banners for the party and attending their rallies and activities.

3.In July 2014 while he was putting up posters for his party the applicant was approached by several PTI supporters with pistols who threatened him that he should leave his party to join theirs, and when the applicant asked for time to consider their demand, they then left.  Afterwards the applicant reported the matter to the police who did not however carry out any investigation.

4.Two months later in September 2014 the applicant was again approached by those PTI supporters who fired several shots with their pistols at him but missed, and the applicant fell and hurt his right arm while fleeing from the scene but managed to escape without any other serious injury.

5.After the shooting incident the applicant became fearful for his life, and when he realized that his party would not be able to offer him any protection, he fled to Runchor to take shelter at a friend’s place, but when he heard from his family that those PTI supporters were still looking for him, he decided that it was no longer safe to remain in Pakistan, and therefore departed on 8 September 2015 for China, and from there he sneaked into Hong Kong, and after arrested by the police he raised his non-refoulement claim, and was subsequently released on recognizance pending the determination of his claim.

6.On 28 October 2016 he was arrested by police for trafficking dangerous drug for which he was subsequently convicted and sentenced to prison for 22 months, during which he completed a Non-refoulement Claim Form on 12 January 2017 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

7.By a Notice of Decision dated 13 February 2017 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 level of risk of harm from those PTI supporters to the applicant upon his return to Pakistan as low due to the low intensity and frequency of ill-treatment from them in the past, that such past ill-treatment did not attain the minimum level of severity under any of the applicable grounds, that there were no real intention on those PTI supporters to harm or kill the applicant who was just an ordinary supporter of PML-N unlikely to be targeted by PTI, that 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 201 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 areas away from his home district in large cities such as Lahore or Islamabad where it would be difficult if not impossible for those PTI supporters to locate him.

9.On 21 February 2017 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 26 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 22 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board upon hearing the applicant in evidence found his account as to his involvements in PML-N and the threats from those PTI supports vague, inconsistent and incredible and that he was not a reliable witness, and did not accept that the threats from the PTI supporters or the shooting incident occurred as claimed or that he is of any adverse interest to the PTI members or to anyone else in Pakistan, and concluded that there is not a real risk that the applicant will suffer harm of any kind for any of the reasons he has claimed, or for any other reason now or in the foreseeable future upon his return to Pakistan, and therefore it was not even necessary to consider or make any findings in relation to state or police protection or internal relocation in Pakistan.     

11.On 28 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 their decisions wrongly in assessing his non-refoulement claim;

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

(3)  that they failed to take into consideration that right to life must be protected from extra-judicial killings that the applicant may face if he is deported to Pakistan; and

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

12.These are however 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 were their decisions unreasonable or unfair under the Wednesbury test, or how were extra-judicial killings relevant to his case.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13.As for his complaint of not being given sufficient time or opportunity to provide relevant evidence in support of his claim and his appeal, again he failed to provide any particulars or elaborations as to how that being so, of which he never raised any issue nor request for further time during his appeal before the Board or at his oral hearing before the adjudicator.  Even now in his application and oral hearing before me, he did not provide any additional evidence or make any further representation in respect of his claim.  In the premises I do not find any merit in this complaint of the applicant.

14.The fact is that the applicant’s claim was rejected by the Board on credibility based on the evidence and materials available to the adjudicator with the benefit of hearing him in evidence and for the detailed analysis and reasoning set out in paragraphs 41 – 75 of the decision, in which the applicant has failed to clearly or properly identify any legal errors or procedural unfairness or irrationality other than those vague assertions as above without any particulars or elaborations.   

15.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.

16.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.

17.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