Muhammad Imran v. The Director of Immigration and Another

HCAL 616/2018

[2019] HKCFI 806

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 616 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 the Applicant being present / absent 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 47-year-old national of Pakistan who entered Hong Kong illegally on 7 January 2007 and was arrested by police on 22 May 2007.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by three Sunni men for having witnessed their bombing of a Shia mosque.  After his claim was rejected by both the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”), he successfully obtained an order from the Court by way of judicial review on 17 February 2015 that both decisions be quashed and that his torture claim be remitted to the Director for fresh determination.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in a family of Shia Muslims in Village Gohad Pur, District Sialkot, Punjab, Pakistan where there were frequent conflicts between Shia and Sunni Muslims.

3.In the afternoon on 8 December 2005, while the applicant was standing outside a Shia mosque, a bomb exploded inside causing numerous casualties, and when he saw three men fleeing from the scene in a jeep, he suspected that they were responsible for the bombing and reported to the police, and based on his descriptions the police were able to identify the three men as Sunnis, but no arrests were made after they had gone into hiding.

4.Several days later while the applicant was at work, he was informed by his neighbours that three men had fired their weapons at his home, and the applicant suspected that they were the same three men whom he had identified in the mosque bombing who had come to kill him for having witnessed their crime.

5.On another occasion when he was leaving the mosque, he saw the same three men in the premises, and when his fellow Shias fired at them, the three men managed to make their escape.

6.As tensions between the Shias and the Sunnis in Sialkot began to strain after the mosque bombing, and in view of the threats from those three Sunni men, the applicant moved to Lahore in January 2006 where he stayed for several months before moving again to Quetta and then Karachi, but as he was still concerned about being located by those three men, he departed Pakistan on 18 December 2006 for China and later sneaked into Hong Kong where he subsequently raised his torture claim which was later taken as a non-refoulement claim and assessed under the Unified Screening Mechanism, for which he completed a Supplementary Claim Form on 14 September 2015 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

7.By a Notice of Decision dated 18 March 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then 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”).

8.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from those three Sunnis upon his return to Pakistan as low due to the absence of past ill-treatment from them and that after all these years that it is unlikely that they would still have any adverse interest in him, 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 (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population 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 part of Pakistan away from his home in large cities such as Lahore or Karachi where he had stayed before without any incidents and where it would be difficult if not impossible for those three Sunni men to locate him.

9.By a Notice of Further Decision dated 27 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”).

10.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, the notice of which was filed on 29 March 2016 in which he gave the grounds of his appeal that the Director’s decision was not made properly, and that he wanted his case to be reviewed because he did not want to go back as his life was still in danger.

11.On 20 April 2017 he attended an oral hearing before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. He also produced additional documents to the Board in support of his case.  On 23 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board found material discrepancies between his claim and those documents produced by him that casted grave doubts on his credibility, that in any event he had not suffered any torture or ill-treatments under any of the applicable grounds, that in the absence of any official involvement that state or police protection would be available to him, and that being an able-bodied adult with work experience it would not be unduly harsh for him to relocate to other major cities in Pakistan such as Lahore, Quetta or Karachi where he had stayed before without any mishap.

13.On 11 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, but no grounds for seeking relief was given in his Form, and in his affirmation of the same date he merely stated that he was not satisfied with their decisions as they did not really understand his case but without providing any particulars or elaboration, or identifying any legal errors or procedural unfairness in the decisions.

14.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as 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 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.Furthermore, the fact is 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 & 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 13^th day of June 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