Zeeshan Ul Haq v. Immigration Department

HCAL 583/2018

[2020] HKCFI 1780

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 583 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 36-year-old national of Pakistan who entered Hong Kong illegally on or about 8 December 2013 and was arrested by police on 10 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 his uncles and their sons over a family land dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Khanpur Area, Sheikhupura District, Pakistan.  After leaving school, initially he did not work but relied on his parents, and joined the political party Pakistan Peoples Party (“PPP”) as a volunteer helping the residents in his local district as to their normal needs. Later in 2008 he started to work as a decoration worker and became self-sufficient.

3.His family owned a piece of farmland in the home district inherited from the ancestors, but there had been continued disputes between his family and his two uncles and their sons over the title of the land which had led to many heated quarrels and sometimes even violent encounters.

4.One evening in 2004 one of the Applicant’s brothers was ambushed by the sons of their uncles that he had to fire his pistol in defense which hit one of the assailants, and subsequently out of fear his brother fled to Kuwait and had since not returned.

5.On another occasion in 2005 while the Applicant with his fellow supporters of PPP were working in their local election campaign, they were attacked by his cousins and other supporters of rival political party Pakistan Muslim League (N) (“PML(N)”) that he suffered bruises all over his body.

6.After the assault the Applicant’s father tried to negotiate with his brothers to resolve their land dispute but to no avail, and their quarrels over the land continued.

7.One evening in 2009 while the Applicant and his parents were at home, the sons of his uncles came and fired their guns outside their house which frightened the Applicant and his family so much that they moved to Gujrat City to avoid further conflicts with them.

8.However, one day in 2013 the Applicant was kidnapped by a local gang whom he suspected were hired by his uncles to demand a ransom from his father, but when his father brought the money to the kidnappers, his father suffered a heart attack and fell to the ground.  As a result one of the kidnappers took his father and him to the hospital for emergency treatment.

9.Upon being discharged from the hospital, his father advised the Applicant to leave Pakistan for his own safety, and so on 5 December 2013 the Applicant 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 17 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

10.By a Notice of Decision dated 30 March 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC 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, Cap 383 (“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”).

11.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 the claimed risk of harm from his uncles or cousins upon his return to Pakistan would materialize due to the low intensity and frequency of past ill-treatment from them, that his problems with them was a family land dispute 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 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 working experience to move to other part of Pakistan away from his home district in large cities where it would be difficult if not impossible for his uncles or cousins to locate him.

12.By a Notice of Further Decision dated 16 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”).

13.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 13 April 2016, and for which he attended an oral hearing on 11 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 22 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

14.In its decision the Board found the Applicant an evasive witness in his evidence and answers to questions raised of his claim during his appeal hearing which undermined the credibility of his claim of fear of harm from his uncles or cousins over the land dispute of his family, and that in any event in the absence of any official involvement that state/police protection would be available as well as reasonable internal relocation for the Applicant to move safely to other parts of Pakistan away from his home district to re‑establish his life and work without any risk of being located by his uncles or cousins that his claim for non-refoulement protection failed on all applicable grounds.

15.On 9 April 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 the Board’s decision was unreasonable in that it failed to consider all the matters raised in his claim and/or give adequate reason for the decision but without providing any particulars or elaborations as to why it was so, nor did he request any oral hearing for his application.  A careful examination of the Board’s decision clearly shows that the Board did consider all the matters raised in his claim and did provide detailed and thorough analysis and explanations for its decision.  There is simply no basis or merit in the Applicant’s complaints at all.

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 71 – 81 of its decision with the benefit of hearing him in 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 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.

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 4^th day of August 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