Hussain Sada v. The Director of Immigration and Another

HCAL 1036/2018

[2020] HKCFI 1318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1036 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;    or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 28-year-old national of Pakistan who entered Hong Kong illegally on 16 February 2016 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 a local Sunni leader in his home village over their religious dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Shia Muslim in a village in Faisalabad,Punjab, Pakistan.  After leaving school he worked as a security guard in his home village, and became involved in organizing and attending religious activities for the local Shia Muslims.

3.In the village there was a group of Sunni Muslims that followed a revivalist movement within Sunni Islam known as Deobandi led by a local villager named Bilal who often had conflicts with the Applicant over religious issues between Shia and Sunni Muslims villagers.

4.Their conflicts started one day in December 2015 while the Applicant was participating in a religious gathering with his fellow Shias in a mosque, Bilal with a group of his followers arrived with guns to harass the Shias by shooting their guns into the air and scaring them away.

5.The Applicant then made a complaint to the police but they failed to follow up with any action.  Several days later Bilal with his followers came to the Applicant’s house firing their guns outside into the air and terrifying the Applicant and his family.

6.On the following day the Applicant received a telephone call from Bilal who threatened him to cease organizing any religious activities for the Shias in the village or else he would be killed.

7.On another occasion in early 2016 while the Applicant was hosting a religious gathering for the Shia Muslims in the mosque, Bilal arrived with his followers to demand that he put an end to the gathering, and when the Applicant refused, Bilal and his men punched and kicked him violently that he subsequently required medical treatment in a local clinic.

8.After the beating and when the police still failed to do anything, the Applicant’s parents advised him to leave the country for his own safety, and so on 4 February 2016 the Applicant 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 18 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.Whilst released on recognizance pending the determination of his claim, the Applicant was arrested by police on 13 March 2017 for possessing a forged identity card and for undertaking unauthorized employment, for which he was subsequently convicted and sentenced to prison for 15 months.

10.By a Notice of Decision dated 17 August 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 (“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”).

11.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Bilal and his men to the Applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, 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 (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 202 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 young man with work experience to move to other part of Pakistan away from his home district in large cities such as Lahore where it would be difficult if not impossible for Bilal or his people to locate him.

12.The Applicant then 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 4 May 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 25 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

13.In its decision the Board found it incredible of the Applicant’s claim of being the only Shia in his home village targeted by Bilal and his men for harassments given his young age and low position amongst the Shia Muslims in the village, and rejected his claim of being ever threatened by Bilal or his men prior to his departure from Pakistan, and that in any event he would have the option of internal relocation to other places in Pakistan such as Gujranwala where he used to live and work safely or to Faisalabad where he would not be at any risk of harm from Bilal or his men.

14.On 6 June 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 failed to appreciate or give proper weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(2)       that the Director failed to take into account the fact that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies as the direct result of misconduct of the police;

(3)       that the Director failed to take into account the argument that the state would be rendered liable to the Applicant by cause of the state and its public officials in failing to provide reasonable protection for its citizens under the duty of due diligence;

(4)       that the Director failed to consider or give sufficient weight in those relevant COI that support the Applicant’s case that the police in Pakistan would not be able to protect its citizens;

(5)       that the Director just relied on COI that suited his pre-conceived conclusion and was therefore a clear case of unfair attitude that should render his decision void;

(6)       that the Director failed to take into account the fact that corruption and incompetency in Pakistan is still a very serious problem as evidenced by the human rights reports;

(7)       that the Director failed to attain high standards of fairness required by the Wednesbury test in his decision that his decision is thereby considered as unreasonable in the scope of public law;

(8)       that the adjudicator failed to make sufficient enquiries before finalizing the determination; and

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

15.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 fail to make sufficient inquiry or to take into account relevant COI or being selective or improperly relyon irrelevant COI, or in what way did the adjudicator fail to give him sufficient opportunity to produce evidence to support his claim or his appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and at his hearing before the Board he was able to present and articulate his case fully with the assistance of an interpreter during which he never made any request for further time or opportunity to produce additional evidence for his claim.  In the circumstances there is simply no basis or merit in these complaints of the Applicant, nor do I find any of them reasonably arguable for his intended challenge.

16.As has been repeatedly emphasized by the Court of Appeal, 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.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.

18.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.

19.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 2^nd 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