Rehan Ali v. The Director of Immigration and Another

HCAL 1505/2018

[2020] HKCFI 1863

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1505 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 30 April 2013 and was arrested by police on 5 May 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 former girlfriend’s family who objected to their relationship.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Gujranwala, Pakistan.  After leaving school he worked in the factory and courted a girl from his home town, but her family were opposed to their relationship, and in 2012 her brother had on several occasions confronted the Applicant demanding him to stop seeing his sister, and when the Applicant refused, he proceeded to beat him, and on one occasion made a false claim against him to the police that he had disrespected his family for which the Applicant was detained at the police station during which he was also beaten until the next day when he was bailed out by his family.

3.In late 2012, due to great pressure from her family to put an end to their relationship, his girlfriend committed suicide, for which her family put the blame on the Applicant and threatened to kill him in revenge.

4.Fearing for his life, the Applicant therefore fled to Karachi in December 2012 where he stayed without incidents, but later when he heard that his former girlfriend’s family were looking for him everywhere, he felt it was no longer safe to remain in Pakistan, and so on 21 April 2013 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 25 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

5.By a Notice of Decision dated 15 February 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”).

6.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 by his former girlfriend’s family upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that it was a personal dispute between him and his former girlfriend’s family 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 (“COI”) 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 Lahore or Karachi where he had stayed before without incidents and where it would be difficult if not impossible for his former girlfriend’s family to locate him.

7.On 20 February 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 10 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 15 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found serious inconsistencies and discrepancies in the Applicant’s evidence that he was not a witness of truth and that he had fabricated claims in relation to being assaulted by his former girlfriend’s family, and concluded that he was not of any interest to her family or that he would face any real risk of any proscribed harm upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds. 

9.On 30 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1) that the Director and the adjudicator reached their decisions wrongly and were not reasonable or fair;

(2) that the adjudicator failed to give the Applicant sufficient time and chance to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting the Applicant’s non-refoulement claim;

(4) that the Director failed to take into account that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5) that the Director failed to consider or give sufficient weight to those evidence in the listed COI which supported the Applicant’s aversions that the police in his country would not be able to protect;

(6) that the Director only relied on COI which suited his pre-conceived conclusion which was a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void;

(7) that the Director failed to attain high standard of fairness required by the Wednesbury test in the decision in finding that corruption and incompetency of the administration in his country is still a very serious problem of which various human rights organization had compiled reports which stated testament to the Applicant’s aversions;

(8) that the adjudicator failed to make sufficient enquiry before finalizing the determination of his claim; 

(9) that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence for his non-refoulement claim as well as his appeal.

10.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way was state acquiescence relevant to his claim, or how did they to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or in what way did they fail to conduct proper or sufficient enquiry or to apply high standard of fairness or fail to give him sufficient opportunity to provide relevant evidence in support of his claim or his appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

11.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.

12.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 32 – 45 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.  

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

14.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.

15.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 11^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