Shah Syed Qasid Hussain v. The Director of Immigration and Another

HCAL 1389/2018

[2020] HKCFI 134

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1389 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 54b-year-old national of Pakistan who entered Hong Kong illegally on 16 December 2013 and was arrested by police on 17 December 2013.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by certain local Sunni Muslims over religious disputes.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Gujar Khan, Pakistan as a Shia Muslim.  After leaving school, he worked as a taxi driver to support his wife and two children in his home area, and joined a local Shia Muslim religious and community group regularly attending its religious activities.

3.One day in 2012 after attending certain Shia religious activities, the Applicant was confronted by a group of local Sunni Muslims on the street who demanded that he ceased all the Shia religious activities in the village, then proceeded to slap and punch and push him onto the ground until they were restrained by some passers-by that the Applicant managed to escape from the scene without serious injuries.

4.Afterwards the Applicant reported the attack to the police but no action appeared to have been taken, and several weeks later he was again approached by some strangers on the street who punched and kicked him all over the body before leaving with a warning that he should stop participating in all those Shia religious activities.

5.About one month later, the Applicant was attacked by some unknown persons who punched and kicked him and with the same warning that he should stopped the Shia religious activities in the village.

6.One day in February 2013 the Applicant was again attacked by unknown men on thestreet that he was knocked unconscious and was taken to the hospital for medical treatments for his injuries including fractured ribs.

7.Upon his discharge from the hospital, the Applicant took shelter in various places away from his home village without further incidents, but as he was still fearful of further attacks and felt that it was no longer safe to remain in Pakistan, he therefore departed on 14 November 2013 for China where he stayed for one month before returning to Pakistan, and on 11 December 2013 he again departed for China, and from there he later sneaked intoHong Kong and raised his non-refoulement claim for protection, for which he completed aNon-refoulement Claim Form on 31 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.By a Notice of Decision dated 12 July 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under PartVIIC 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 Ordinance (“HKBOR”), Cap 383 (“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 from those alleged assailants or Sunni Muslims upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he had been targeted by Sunni Muslims in his home village over religious disputes, 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 reasonable internal relocation alternatives are available in Pakistan 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 Faisalabad or Rawalpindi where it would be difficult if not impossible for those Sunni Muslims to locate him.

10.By a Notice of Further Decision dated 21 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”).

11.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 22 July 2016, and for which he attended two oral hearings on 3 April 2017 and 24 May 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 28 June 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board found serious inconsistencies and discrepancies in the Applicant’s evidence regarding his claim that he was not a witness of truth, and rejected his claim to have been threatened or assaulted for religious reasons, and that in any event with reasonable internal relocation options available in other parts of Pakistan away from his home district that it would not be unreasonable for him to move safely to other large cities such as Islamabad that his claim for non-refoulement protection failed on all applicable grounds. 

13.On 13 July 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 his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting the Applicant’s non-refoulement claim;

(2) that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies as a direct result of police misconduct;

(3) that the Director failed to take into consideration that the state should be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(4) that the Director had listed relevant COI which support the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to those evidence and ruled otherwise;

(5) that the Director relied only on COI which suited his pre-conceived conclusion which was a clear case of unfair attitude towards the Applicant;

(6) that the Director failed to consider the fact that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as evidenced by the reports of various human rights organizations on the matter which supported the Applicant’s assertions; and

(7) that the Director failed to attain high standard of fairness required by the Wednesburytest which should be considered as unreasonable in the scope of public law.

14.These are however all 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 Board had erred in their decisions, or why would state acquiescence be relevant to his claim, or in what way did the Director or the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or how did the Director or the adjudicator fail to apply high standards of fairness in assessing his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

15.As has been repeatedly emphasized by the Court of Appeal, 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

16.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 45 – 72 of its decision with the benefit of hearing him in his oral evidence and answers to questions raised of his claim during two oral hearings of his appeal, and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant with sufficient particularity, I do not find any reasonably arguable basis for him to challenge the findings of the Director or the Board.

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 16^th day of January 2020.

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