Baig Rehman v. The Director of Immigration and Another

HCAL 1950/2018

[2020] HKCFI 1444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1950 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 37-year-old national of Pakistan who entered Hong Kong illegally on 29 January 2016 and surrendered to the Immigration Department on 15 February 2016 when he subsequently raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his cousin over a land dispute in his home village.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Sarai Alamgir, District Gujrat, Punjab, Pakistan.  After leaving school he assisted in his father’s farming on his farmland, and lived with his family in his home village.

3.After his father passed away in 2010, his father’s lands and properties were distributed amongst the Applicant and his brothers, and in 2014 the Applicant purchased a further piece of land adjacent to his from his neighbor.

4.Shortly after the purchase and when the Applicant started to erect some structure on the land, his cousin claimed that he was in fact the true owner of that land and filed a court case against the Applicant.

5.Eventually in May 2015 the court ruled in favour of the Applicant, and one day his cousin came with his followers to the Applicant’s home and made an offer to purchase the land from him, and when the Applicant refused, his cousin angrily slapped him on the face and threatened to kill him if he refused to reconsider his proposal before he left with his men.

6.On the next day the Applicant reported the incident to the police.  On the same evening his cousin came with his men to the Applicant’s home again to warn him to withdraw his complaint from the police or else he and his family would be killed, and then he left with his men without further incident.

7.Fearing for his safety, the Applicant then fled to Karachi where he stayed for several months without incident, but later when he heard that his cousin had occupied his land and also found out his whereabouts in Karachi, the Applicant felt it was no longer safe to remain in Pakistan, and so on 28 January 2016 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 29 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

8.By a Notice of Decision dated 7 February 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 Ordinance, Cap 383 (“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 of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by his cousin or his followers upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that their land dispute was a private personal matter without 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 show that reasonable internal relocation alternatives are 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 working experience to move to other part of Pakistan away from his home district in large cities such as Islamabad or Faisalabad where it would be difficult if not impossible for his cousin or his followers to locate him.

10.On 21 February 2018 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 9 July 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 16 August 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found the Applicant’s dispute with his cousin a private land dispute from which no violence had been inflicted on him other than a slap on the face and some verbal threats uttered against him by his cousin, that for the next eight months after he had moved to Karachi, he encountered no further trouble from his cousin, that in the absence of any official involvement that state or police protection would be available to the Applicant as well as reasonable internal relocation within Pakistan for him to move safely to other area away from his home district to re-establish himself in large cities such as Karachi where he had stayed before without incidents without any fear or risk of being located by his cousin that his claim for non-refoulement protection failed on all applicable grounds.   

12.On 17 September 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 both in his Form and his supporting affirmation of the same date he merely recited his claim and complained that he has been aggrieved by the decisions of the Director and the adjudicator as being unreasonable in that they failed to take into account “many things and issues” but without providing any particulars or specifics or elaborations as to what those things and issues were or how the Director or the adjudicator had erred in their decisions, nor did he attend the scheduled hearing of his application, for which he later wrote to the court claiming not to have received the notice of the hearing in the mail, but upon ascertaining from the records that the notice was indeed sent both by ordinary post and registered post to his last reported address but only the registered post had been returned but marked “Unclaimed”, and in the absence of any further supporting evidence from the Applicant, I was not satisfied that the Applicant had provided any good or valid explanation for his non-attendance at the scheduled hearing, and therefore decided to proceed to deal with his application in his absence and on papers.  In the circumstances 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 clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

13.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

14.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.     

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.

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

Dated the 17^th day of July 2020. 

Form CALL-1