IQBAL ADNAN v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1988/2018

[2020] HKCFI 1476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1988 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 31-year-old national of Pakistan who arrived in Hong Kong on 16 August 2011 and when he was refused entry by the Immigration Department, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by the family of his wife who opposed to their marriage, and after his torture claim was rejected, he then 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 as a Sunni Muslim in Village Gordisian, District Mirpur, Pakistan.  After leaving school he worked as a shop assistant in Jatalan.

3.  In 2009 he formed a relationship with a girl from a wealthy Shia family, but due to their different ethnic and status, they kept their relationship as a secret from her family.

4.  However, one day in January 2011 their relationship was discovered when they ran into his girlfriend’s mother who then immediately brought his girlfriend home and locked her away.

5.  Shortly thereafter the Applicant sent his father to his girlfriend’s home to propose for marriage, but his proposal was rejected by her parents due to their different ethnic and social status.

6.  On 25 January 2011 his girlfriend sneaked out of her home to meet the Applicant when they then decided to get married and then fled to Barnala City where they took shelter in a friend’s place.  As a result they heard that his wife’s parents were very upset and had hired some gangsters to look for them.

7.  One day in late February 2011 when the Applicant sneaked quietly back to his home village to visit his parents, he was ambushed by two unknown men with weapons whom he suspected were gangsters sent by his wife’s parents but he managed to escape from them on his motor bike.  Afterwards he reported the matter to the local police but it appeared to him that they did not follow up with any investigation.

8.  When he later returned to his friend’s place in Barnala City, he was informed by his friend that some unknown men were acting suspiciously in the neighbourhood, and the Applicant suspected that they were people sent by his wife’s parents looking for them.

9.  A few days later when the Applicant and his friend returned home from the market, they found that the place had been ransacked and that his wife had disappeared.  The Applicant suspected that she must have been snatched and brought back to her family, but when he asked his father to make enquiry with her parents, they denied to have anything to do with it and instead threatened that they had in fact complained to the police that the Applicant had kidnapped their daughter, and that the police were already looking for him.

10.  As a result the Applicant became fearful for his safety and felt that it was no longer safe to remain in Pakistan, and so on 9 August 2011 he departed for China, and from there he later travelled to Hong Kong, and when he was refused entry he raised his torture claim, and after it was rejected he then sought non-refoulement for protection, for which he completed a Supplementary Claim Form on 22 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

11.  By a Notice of Decision dated 11 November 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining grounds except 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 no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by his wife’s family upon his return to Pakistan due to the absence of past ill-treatment from them, that it was a private personal dispute between him and his wife’s family without any reliable evidence 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 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 Islamabad where it would be difficult if not impossible for his wife’s family to locate him.

13.  On 24 November 2016 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 4 July 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 6 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

14.  In its decision the Board found the Applicant’s evidence of his claim inconsistent, evasive and implausible which undermined his credibility that it was not satisfied that he had actually married his wife or that he departed Pakistan out of any genuine fear of being harmed or killed by her family, and that in any event based on reliable COI that state protection as well as reasonable internal relocation within Pakistan would be available for the Applicant to move safely to other area away from his home district to re-establish his life without any fear or risk of being located by his wife’s family that his claim for non-refoulement protection failed on all applicable grounds.    

15.  On 19 September 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 in assessing his non-refoulement claim as not reasonable or fair as required by the Wednesbury test to protect him from extra-judicial killing which he may face if deported to his home country;

(2) that the Director failed to take into account or to give sufficient weight to the argument that corruption and incompetency of the administration in Pakistan is still a very serious problem as reported by various human rights organization which stated testament to the Applicant’s assertions; and

(3) that the Director failed to attain the high standard of fairness required by the Wednesbury test in failing to accept the argument as above in his decision.  

16.  These are however all just broad and vague assertions of the Applicant containing several pages of 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 did they fail to apply high standard of fairness in assessing his claim, or why extra-judicial killing or administrative corruption in Pakistan would be relevant to his claim. 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.

17.  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.

18.  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 46 – 71 of its decision with the benefit of hearing his oral evidence 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.   

19.  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.     

20.  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.

21.  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