Muhammad Abid v. Director of Immigration

HCAL 188/2018

[2020] HKCFI 1186

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 188 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 31-year-old national of Pakistan who entered Hong Kong illegally on 15 October 2015 and was arrested by police on 16 October 2015.  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 his uncle and his sons for having witnessed a murder committed by them.  He has since been released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kalu Kalan, Hazro Tehsil, District Attock, Punjab, Pakistan.  After leaving school he operated an auto shop in the village with his three brothers.

3.In 2008 he together with his brothers bought a piece of land in the village from his uncle Haider who was a wealthy and influential landowner and builder in the village with political connections.

4.The Applicant and his brothers bought the land for the purpose of building a mosque for their religion, and in 2010 they started the construction of the mosque, but when Uncle Haider heard about it, he raised objection for his own religious reason, and when the Applicant refused to stop the construction, one day Uncle Haider together with his sonscame onto the land and threatened the Applicant and his brothers that if they did not halt the construction, they would be killed, but when the Applicant refused, one of Uncle Haider’s sons pulled out a pistol and shot at but missed the Applicant and his brother who then fled from the scene and called for help, and when his maternal uncle Atlas came to their rescue by firing back at Uncle Haider with his pistols, Uncle Haider and his sons then left.

5.However, in the same evening the Applicant received a call from Uncle Atlas for help, and when he and his brothers rushed to his home, they discovered his entire family had been killed, and saw Uncle Haider and his sons fleeing from the scene, and so he suspected they were involved in the murders, and reported the matter to the police.

6.As a result Uncle Haider’s sons were arrested by the police for investigation, but after two months they were released on bail, and when their case came up for trial they were able to keep adjourning it by paying bribes to the court until eventually the charges against them were all dismissed by the court.

7.Notwithstanding which Uncle Haider and his sons would make death threats against the Applicant and his brothers for accusing them of the murder to the police, and one day in June 2011 when two of his brothers failed to return home and disappeared without any news, the Applicant suspected it had something to do with Uncle Haider, and as he was fearful for his own safety, he and the rest of his family therefore moved to Karachi where he stayed for the next four years without any incidents, but as he remained in constant fear for his life, he departed Pakistan on 12 October 2015 for China, and from there he sneaked into Hong Kong and subsequently raised his non-refoulement claim, for which he later completed a Non-refoulement Claim Form (“NCF”) on 3 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.Whilst being released on recognizance, he was arrested by police on 4 January 2017 for using a forged identity card and taking up employment without permission, and was subsequently convicted and sentenced to imprisonment for 15 months.

9.By a Notice of Decision dated 20 July 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”).

10.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 will be any real or substantial risk of him being harmed or killed by his uncle and his sons, that he had encountered no threats from them for more than four years after moving to Karachi,that in the absence of any official involvement in the threats from his uncle that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information 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 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young man with work experience to move to other part of Pakistan away from his home district in large cities such as Karachi where he had stayed before without incidents and where it would be difficult if not impossible for Uncle Haider or his sons to locate him.

11.The Applicant then 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 10 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 6 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board found inconsistencies and discrepancies in the Applicant’s account of events in Pakistan between what he had stated in his NCF and in his evidence in his appeal hearing before the Board that gave grounds for believing that he was not being frank with the Board, that other than his words there were no reliable evidence to support his claims, and that in any event as the charges against Uncle Haider’s sons had since been dismissed and that he had stayed in Karachi for four years without any further threats from Uncle Haider that he can safely relocate to other places in Pakistan, and concluded that he is not entitled to non-refoulement protection in Hong Kong under any applicable grounds.

13.On 8 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward just one ground for his intended challenge, which is that the decision is unfair and unreasonable, but without providing any particulars or elaboration why it was so.

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 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.

15.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 63 – 84 of its decision, and in the absence of any legal error or procedural unfairness being clearly and properly shown by the Applicant, I am unable to find any reasonably arguable basis to challenge the Board’s decision.

16.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 isa 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.

17.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.

18.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 June 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