Khan Mehdi Hassan v. The Director of Immigration and Another

HCAL 528/2018

[2019] HKCFI 289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 528 of 2018

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 48-year-old national of Pakistan who entered Hong Kong illegally on 5 February 2016 and was arrested by police on 11 March 2016.  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 a group of Wahhabi Muslims in his home village because he and his family were Shia Muslims. He has since been released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in a village in Balochanwala in the Khushab District of Punjab, Pakistan to a family of Shia Muslims.  After leaving school he worked as a famer in his home village and got married with two children.  As the Wahhabi Muslims were dominant in the village and often harassed and threatened the minority Shias, the Applicant therefore in 2012 moved his family to neighbouring village in Sher Shah, Mohalla,Taj Pura North within the same district of Khushab.

3.One day in October 2015 the Applicant and his family together with some fellow Shia Muslims were celebrating a religious event in a parade, but when they passed by the local Wahhabi mosque, they were attacked by Wahhabi Muslims with stones and sticks led by four senior members of the ruling political party Pakistan Muslim League-Nawaz (“PMLN”) from his home village, during which the Applicant suffered injuries and bruises all over his body while his uncle was shot and later died in the hospital.

4.After receiving medical treatment the Applicant went to the local police to make a complaint against the Wahhabi Muslims and their leaders but were turned away.

5.Several weeks later in November 2015 those leaders of the Wahhabi Muslims in the village warned the Applicant that he and his family would be killed if they continued to live in the village.

6.Fearing for their life the Applicant therefore moved away to Islamabad while his wife and children went to stay with her parents in Gutta, but as he was still fearful for his safety and therefore decided to leave Pakistan, which he did on 28 January 2016 for China, and from there he sneaked into Hong Kong, and upon his arrest he then raised his non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 8 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.Whilst released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 9 December 2016 for taking employment without permission and was subsequently convicted and sentenced to 15 months’ imprisonment.

8.By a Notice of Decision dated 25 August 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”).

9.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 to the Applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from the Wahhabi Muslims in his village, that their intention was to get him and his family out of their village as evidenced by the absence of any further incidents to him or his family since their departure from the village, that in the absence of 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 Wahhabism has only a minority presence in Pakistan and that reasonable internal relocation alternatives are available in the country with a large population of 199 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 adult with work experience to move to other part of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for those Wahhabi Muslims from his village to locate him.

10.On 1 September 2017 the Applicant 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 4 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 14 May 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision and despite finding apparent inconsistency in the Applicant’s evidence relating to events following the alleged attack in the village which undermined his credibility, the Board was prepared to accept that he may have left his home village in 2012 on account of harassment from Wahhabis in the village, but found no evidence that he had been targeted by extremist Sunnis or Wahhabis, as evidenced by the fact that neither he nor his family had since encountered nothing untoward up to the time of his departure from Pakistan, and that he can always relocate to other area in large cities such as Islamabad where he had stayed before and where he can stay without risk from Wahhabis.

12.However, prior to this decision from the Board, the Applicant on 29 March 2018 filed his Form 86 for leave to apply for judicial review of not just the Director’s decision but also the Board’s decision even though it had not yet been delivered, 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 his 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 or opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal.  

13.At the hearing the Applicant did not provide any explanation as to how these grounds could apply to the Board’s decision which was not yet available when they were inserted in his Form 86 other than claiming that they were prepared by his lawyer and he did not know anything about legal matters.  Even assuming that they could retrospectively apply to the Board’s decision, they are 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 decision 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 or his appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and even now in his application before me or at the hearing he did not produce any further evidence or make any further representation regarding his claim. As such I do not see any basis or merits in any of his complaints.

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 the 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.As it has also been held by the Court of Appeal that the decision of the Director is no longer susceptible to judicial review once an appeal to the Board is pursued by a non-refoulement claimant as the Director’s decision has been superseded by the Board’s decision, it is therefore not open to the Applicant to challenge the Director’s decision by way of judicial review, never mind the fact that the Applicant was already months out of time with his application as regard the Director’s decision: see Re Moshsin Ali [2018] HKCA 549.

16.As for his intended challenge against the Board’s decision, as noted above procedurally he could not have done so when the decision was not even available at the time when he filed his Form 86, and in the absence of any ground applicable to that decision, I am unable to see any prospect of success in his application. 

17.Furthermore, 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 & anor [2013] 1 HKC 526.

18.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.

19.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 22^nd day of October 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