HUSSAIN ALTAF v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1473/2018

[2020] HKCFI 1413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1473 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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 on 17 January 2014 under a dependent visa of his wife as a local resident, but when his dependent visa expired in April 2016 and was not extended by the Immigration Departmentupon his divorce with his wife and when he was required to leave Hong Kong, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by people sent by the brother of his ex-wife who had blamed him for divorcing his sister.  He was subsequently released on recognizance pending the determination of his claim.  

2.  The Applicant was born and raised in Village Haider Khurd, Tehsil Hazro, District Attock, Azad Kashmir, Pakistan.  After leaving school, he worked in a supermarket in his home village, and became a supporter of the political party Pakistan Tehreek-e-Insaf (“PTI”).

3.  In 2010 his family arranged for him to marry his cousin who was then a resident of Hong Kong.  After their marriage in Pakistan his wife returned to Hong Kong, while the Applicant followed suit to arrive in Hong Kong on 18 January 2014 on her dependent visa.

4.  However, the Applicant was unable to get along with his wife, and eventually divorced her in March 2015 in a Kowloon mosque under Islamic law, which upset very much her family in particular her brother who is also a Hong Kong resident with political connections with the political party Pakistan Muslim League (N) (“PML(N)”) in Pakistan,and who had sent some PML(N) members to threaten the Applicant’s parents in Pakistan that they would kill the Applicant if he returned to Pakistan, and before they left, they fired a shot at the Applicant’s parents but did not hit them.

5.  One day in February 2016 the Applicant was informed by his parents that his brother had been killed by those PML(N) people in Pakistan, and warned him not to return to Pakistan in order to save his own life, and so when his dependent visa expired in April 2016 and was not extended by the Immigration Department, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) and attended screening interview before the Immigration Department on 19 October 2017 with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 23 October 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”).

7.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and doubted his claim that his ex-wife’s brother had sent PML(N) members to threaten his parents or killed his brother in the absence of any reliable evidence, that if his ex-wife’s brother had really intended to kill the Applicant he could have done so in Hong Kong instead of asking the PML(N) members to do it in Pakistan well knowing that the Applicant was not there, that in the absence of any ill-treatment actually suffered by the Applicant and that in any event that it was a private personal dispute between him and his ex-wife’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 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 work experience to move to other part of Pakistan away from his home district such as Islamabad, Rawalpindi, Karachi or Lahore where it would be difficult if not impossible for his ex-wife’s brother or the PML(N) people to locate him.

8.  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 25 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 20 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found the Applicant’s evidence of his claim riddled with inconsistencies between what he stated in his documents including his NCF and those given at his appeal hearing that he was considered as a witness of no credit, that the divorce papers produced by the Applicant show that it was his wife who had divorced him that there is no reason for her brother to blame the Applicant for their divorce that it rejected his evidence in its entirety and did not accept that he had any real fear of being harmed by his ex-wife’s family upon his return to Pakistan, and that in any event with reasonable internal relocation that it would not be unreasonable or unduly harsh for him to avoid any risk from those local PML(N) people by relocating to other places away from his home district that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 26 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, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date other than a regurgitation of his claim that his life would be in danger from his ex-wife’s family, and that the immigration officer assessed his claim without having actually visited Pakistan to learn about the real situation and condition of Pakistan culture but without providing any details or particulars or elaboration as to how or why that was necessary for his claim to be properly assessed.  As such I do not find this complaint of the Applicant 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 detailed analysis and reasoning set out in paragraphs 32 – 58 of its decision with the benefit of hearing him in his oral testimony and his 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.

13.  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.

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.

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