Ahmad Iftikhar v. The Adjudicator of the Non-refoulement Claims Petition Office Appointed To Determine the Applicant’s Petition and Another

HCAL 532/2018

[2019] HKCFI 427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 532 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 39-year-old national of Pakistan who entered Hong Kong illegally on 11 January 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 his paternal uncle and his son 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 Shamsabad, Tehsil Hazro, District Attock, Pakistan.  After leaving school he assisted his father in farming and also worked as a driver in the village.

3.Before he passed away in 2006, the paternal grandfather distributed his 70 kanal of farmland in the village equally between the applicant’s father and uncle, but as the share given to his father was closer to the main road which his uncle believed to be more valuable, his uncle therefore demanded that the land be re-distributed between them, and when his father refused, it became a constant issue that often led to heated quarrels and conflicts between the two families.

4.One day after discovering that his uncle had planted some crops on his father’s land, the applicant pulled them out and throw them away.  Upon discovering what had happened to his crops, his uncle was furious and came to the applicant’s home and threatened that he would be punished for what he had done.

5.Several days later the applicant attended at the local police station to complain about his uncle’s threats, and when his uncle was invited to the police station over the complaint, he accused the applicant of destroying his crops.  As a result the police charged the applicant for damaging his property but also charged his uncle for unlawful farming on his land.

6.However, on the following day the uncle demanded the applicant’s father to bring the applicant to him so that he could teach him a harsh lesson.  As a result the applicant was advised by his father that it was no longer safe for him to remain in Pakistan as his uncle was a powerful and influential man in the local area, and so he departed on 8 January 2015 for China, and from there he sneaked into Hong Kong and subsequently raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 29 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 22 September 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 all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that there would be any real or substantial risk of him being harmed or killed by his uncle upon his return to Pakistan due to the absence or low intensity and frequency of past ill-treatment from his uncle, that it was a private family dispute without any 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 202 million people spread across a vast territory of more than 770,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with working experience to move to other part of Pakistan away from his home district in large cities such as Muzaffarabad or Lahore where it would be difficult if not impossible for his uncle or his son to locate him.

9.The applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 9 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 2 March 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found the applicant’s account of his claim self-contradictory, suspicious and unreliable, and in any event it was a private family matter relating to land dispute between him and his uncle that state or police protection would be available to him, and concluded that he faces no genuine or substantial risk of being subjected to any harm or ill-treatment under any of the applicable grounds.

11.On 3 April 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 not fair or reasonable as required by the Wednesbury test;

(3)  that they failed to take into consideration that the 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 opportunity to arrange relevant evidence for his non-refoulement claim and his appeal.  

12.These are however just broad and vague assertions of the applicant containing several pages of 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 the decision, or in what way were their decisions unfair or unreasonable, or what relevancy was extra-judicial killings to his claim, or how did the adjudicator fail to give him sufficient time or opportunity to produce his evidence in support of his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, nor did he at the hearing of his application now before me produce any further evidence in support of his claim which he might have not been given the time or opportunity to do so before the Board. As such I do not see any basis or merits in any of his complaints.

13.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.

14.In the applicant’s case, the adjudicator had the benefit of hearing him in evidence during the appeal hearing and had set out his careful analysis and detailed findings in the decision based on all the evidence and information available before the Board, and in the absence of any error being properly identified by the applicant, I do not see any reason to disturb or interfere with the Board’s evaluation of the risk of harm asserted by the applicant.  

15.Furthermore, the fact that it has been established by the Director in his 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, with which no doubt the Board agreed when it confirmed the Director’s decision, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.     

16.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.

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 17^th day of May 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