Shams Ul Qamar v. Immigration Department

HCAL 451/2018

[2020] HKCFI 1688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 451 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 34-year-old national of Pakistan who entered Hong Kong illegally on 16 December 2015 and was arrested by police on the same day.  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 supporters of rival political party Pakistan Muslim League (N) (“PML(N)”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kanoha, Tehsil Kallar Syedan, District Rawalpindi, Pakistan.  After leaving school he worked as a farmer in his home village, and followed the tradition of his family to become a supporter of the political party Pakistan Peoples Party (“PPP”) putting up posters and banners for them during the local elections.

3.As the majority of the people in his home district were supporters of rival PML(N), the Applicant was frequently involved in conflicts with them, leading to various incidents between 2006 and 2012 of him and/or his relatives being arrested and detained by police for interrogations as to what were claimed to be false charges made by those supporters that in 2012 the Applicant was jailed for several months before eventually being acquitted of one of those charges.

4.During the 2013 General Election, while he and his father were busy assisting in the local campaign for PPP, one day in April or May a group of PML(N) supporters confronted them with demands that they should quit PPP and to join PML(N), and when they refused, those supporters then started to pose death threats against them, while further false charges were made to the police against the Applicant who would then be arrested for constant interrogation and detention.

5.One day in December 2015 during the provincial election, those local PML(N) supporters demanded the Applicant and his father to vote for their candidate, and when they refused, the group proceeded to attack them with hockey sticks that the Applicant suffered a head injury and had to be brought to the hospital for treatments.

6.Given the persistent harassments of false charges and fearful of further threats of violence against him by those local PML(N) supporters, the Applicant felt that it was no longer safe to remain in Pakistan, and so on 13 December 2015 he departed for China, and from there he sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 24 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

7.By a Notice of Decision dated 11 September 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 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”).

8.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 risk of him being harmed or killed upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from those PML(N) supporters, 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  show that reasonable internal relocation alternatives are available in Pakistan with a large population of 207 million people spread across a vast territory of more than 770,000 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 such as Islamabad or Karachi where it would be difficult if not impossible for those local PML(N) supporters to locate him.

9.On 21 September 2017 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 2 March 2018 before the Board during which he confirmed his claim as contained in his documents in the hearing bundle but declined to give further evidence or to answer any questions from the adjudicator for the Board despite being advised to do so due to various issues that the Board had over the credibility of his claim.  On 9 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found the Applicant’s refusal to give further evidence or to answer questions raised of his case had seriously undermined the credibility of his claim, and that in light of its findings based on the other evidence and information before the Board, it did not accept that the Applicant faces any risk of proscribed harm upon his return to Pakistan in the foreseeable future, and concluded that his claim for non-refoulement protection failed on all the applicable grounds.    

11.On 19 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he found the Board’s decision unfair and unreasonable but without providing any particulars or elaboration as to what it was so, nor did he put forward any other ground for his intended challenge.  Neither did he request any oral hearing for his application.  As such 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 basis for his intended challenge.

12.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.

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 34 – 43 of its decision and the fact that he failed to give further evidence or to answer questions raised of his claim despite being advised by the adjudicator to do so to deal with various credibility issues, 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 basis to challenge the finding of the Board.

14.Furthermore, 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, 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 27^th day of July 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