Sabar Hussain Alias Sabar v. The Director of Immigration and Another

HCAL 925/2018

[2019] HKCFI 2589

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 925 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 36-year-old national of Pakistan who entered Hong Kong illegally on 1 October 2008 and was arrested by police on 3 October 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as 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 Peoples Party (“PPP”) and/or by his brothers-in-law for divorcing his wife.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Moohra Sorat, Chechian, Mirpur,Kashmir, Pakistan.  After leaving school he worked as a metal worker and driver, got married and raised a family with a son, and became a supporter of PPP’s rival political party Pakistan Muslim League (Q) (“PML(Q)”) without any official position other than driving his fellow villagers to vote during elections.

3.One day in late 2006 while he was driving a bus carrying some villagers to vote, hewas intercepted by a group of PPP supporters armed with wooden sticks and other weapons,but the Applicant managed to jump off the bus and made his escape unharmed.

4.Sometime later in the evening some PPP supporters came to the Applicant’s home and attacked him with wooden sticks until they were intervened by the neighbors and left,and for which the Applicant required medical treatments, and although a report was later made to the police, no follow-up action was taken by them.

5.As a result the Applicant felt it was no longer safe to remain in Pakistan, and so in late 2007 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised a torture claim later taken as a non-refoulement claim for protection, and while being released on recognizance pending determination of his claim,the Applicant was informed by his wife in 2014 that as he had been away for so long that she had divorced him in Pakistan, but when he was later informed by his father that his wife’s brothers were unhappy about him divorcing their sister and had threatened to kill him if he returned to Pakistan, he therefore included such risk of harm in his Non-refoulement Claim Form which he completed on 9 January 2018, and that he also attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 23 January 2018 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”).

7.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 PPP supporters or his brothers-in-law to the Applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that the Applicant was just a local supporter of PML(Q) without any official post that there was no reason for those PPP supporters to specifically target him for harm or to have any further interest in him after all these years,that it was his wife who divorced him and hence no reason for her brothers to hold any grudge against him, 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 objectiveCountry of Origin Information (“COI”) show that reasonable internal relocation alternativesare available in Pakistan with a large population of 204 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 Lahore or Karachi where it would be difficult if not impossible for those PPP supporters or his brothers-in-law to locate him.

8.On 31 January 2018 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 24 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 8 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found the Applicant to have provided very different claims between his process before the Director and his oral evidence given before the Board, and concluded that he had not told the truth in relation to his claims to have been involved with a political party in Pakistan or to have come into conflicts with members of another party or to have left Pakistan in fear for his safety, and concluded that he would not be at risk ofany harm if returned to Pakistan, and hence his claim for non-refoulement protection failed on all applicable grounds.

10.On 24 May 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 put forward the following grounds for his intended challenge:

(1) that the Director failed to take into account the argument that the state would be liable for the government’s failure to provide reasonable protection to its citizens;

(2) that the Director failed to consider or give sufficient weight to those COI that support the applicant’s case that the police or authorities in Pakistan would not assist him;

(3) that the Director quoted sources that the Pakistani government has taken practical steps to monitor the conduct of the police and improve their effectiveness without considering the fact that their corruption and incompetency are still extremely serious;

(4) that the adjudicator failed to attain high standards of fairness by the Wednesbury test as the applicant was not legally represented;

(5) that the adjudicator has erred in law in his indifference and agreement towards the Director’s decision despite the errors in the decision;

(6) that the adjudicator failed to make sufficient enquiry before finalizing his decision;and

(7) that the adjudicator wrongly concluded that the injuries suffered by the Applicant failed to attain the minimum level of severity without advising him to obtain medical reports and/or evidence from Pakistan authorities when assessing the seriousness of his injuries.

11.These are however all very 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 their decision, or in what way did they fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or how they failed to apply high standards of fairness or to make sufficient enquiry in assessing his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.  As such I do not find any of them reasonably arguable for his intended challenge.

12.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 Nupur Mst v Director of Immigration [2018] HKCA 524.

13.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 69 – 85 of its decision and with the benefit of hearing him in oral evidence and in his answers to questions raised of his claim during his appeal hearing before the Board,and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant,I do not find any reasonably arguable ground to challenge the finding of the Board.

14.The fact is 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong:see TK v Jenkins & anor [2013] 1 HKC 526.

15.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.

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 9^th day of December 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