Ali Wajid v. Director of Immigration

HCAL 514/2018

[2020] HKCFI 1484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 514 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 33-year-old national of Pakistan who entered Hong Kong illegally on 2 August 2007 and was arrested by police on 14 December 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by his uncle over a land dispute with his parents and/or by the police over certain false charges and/or by his wife’s parents who objected to him marrying their daughter, and when his torture claim was rejected, he sought non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Lahore City, Punjab, Pakistan.  After leaving school he worked as an apprentice in a printing company and remained living with his parents and siblings in his home district.

3.As his uncle had a long-running dispute with his parents over certain property, and one day in October 2001 while the Applicant was away working, his uncle came with his followers to his home to demand that his parents to transfer the property to him, and when his parents refused, his uncle and his followers proceeded to attack them and threatened to shot them with their pistols but left when the police arrived.

4.Upon returning home and found his mother injured as a result of his uncle’s attack, the Applicant lost his temper and went to his uncle’s home and shot and wounded him, and before the police arrived he fled to hide in a friend’s place for several days before fleeing to Karachi where he stayed without incidents until end of 2004 when he returned to his home in Lahore.

5.Shortly thereafter he was arrested by police for fighting over a gambling dispute, and during his detention in the police station, the police tried to force him to confess to other crimes which he did not commit by beating him with batons and wooden sticks during which he was also sodomized by some of them.  Eventually he was brought before the court for fighting and gambling and was released on bail, but the charge was eventually dropped after a bribe was paid to the police by a friend of his.

6.Upon his release the Applicant left Lahore again to avoid further harassments from the police or threats of revenge from his uncle by moving to Sialkot where he found a job as a driver and stayed until early 2007 when he was told that his parents had settled their dispute with his uncle and that it was safe for him to return.

7.However, one day in April 2007 when the Applicant and his friends ran into his uncle and his followers near his house, they were attacked by them with guns during which the Applicant returned a shot at his cousin with his pistol and managed to make his escape with his friends from the scene.

8.After the incident the Applicant fled from Lahore to Sialkot again, but as he no longer felt it was safe to be in Pakistan, he therefore departed on 27 July 2007 for China, and from there he later sneaked into Hong Kong and raised his torture claim with the Immigration Department, and after it was rejected, he sought non-refoulement protection, for which he completed a Supplementary Claim Form on 16 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.While being released on recognizance pending determination of his earlier torture claim, the Applicant was arrested by police on 2 January 2008 for wounding a fellow Pakistani during a fighting incident in November 2007 whom he claimed to be a professional killer sent by his uncle to kill him in Hong Kong and that he was only defending himself, but for which he was later found guilty of wounding that person and was sentenced to prison for 35 months.

10.Upon his release from prison and while still on recognizance pending the determination of his claim, he acquainted his wife in India on the internet in 2013/2014 who later eloped to Hong Kong to marry him against her parents’ objection and as a result her parents had threatened to kill him.  Accordingly the Applicant therefore later included his fear of being harmed or killed by the professional killer sent by his uncle and by his wife’s family as part of the basis for his non-refoulement claim.        

11.By a Notice of Decision dated 20 July 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds except his previous torture claim but including 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”).

12.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found significant inconsistencies and discrepancies in the information provided by him in support of his claim that it was found to be unbelievable, that in any event even if true that the level of risk of harm from his perceived enemies upon his return to Pakistan was assessed to be low due to the absence or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any threats from his wife’s family or any professional killer or that he is still being pursued by police in Pakistan, 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 201 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 Karachi or Sialkot where he had stayed before without incidents and where it would be difficult if not impossible for his perceived enemies to locate him.

13.On 3 August 2017 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 8 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board, but he also retracted his claim of being threatened by his wife’s family or by any professional killer sent by his uncle.  On 6 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

14.In its decision the Board accepted that the Applicant may have been mistreated by the local police in Pakistan over some criminal charges but which have since concluded with no further evidence of any further adverse interest in him, but found numerous credibility concerns with the rest of his claim of risk of harm from his uncle or professional killer or his wife’s family, the evidence of which were found to be vague, inconsistent and implausible that it was not satisfied that the Applicant would face any real risk of harm upon his return to Pakistan that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.     

15.On 28 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 wanted to judicially review the decision because it was unfair but without providing any particulars or reasons why it was so, nor did he request for any oral hearing for his application.  As such I do not find any reasonably arguable grounds or complaints being put forward by the Applicant for his intended challenge.  

16.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.

17.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 101 – 119 of its decision with the benefit of hearing his oral evidence and answers to questions raised of his claim during his appeal hearing, 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.

18.Furthermore, the fact 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, which was also confirmed by the Board in its decision, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19.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.

20.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 28^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