AFZAL AMIR v. DIRECTOR OF IMMIGRATION

HCAL 1449/2018

[2020] HKCFI 508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1449 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 57-year-old national of Pakistan who entered Hong Kong illegally on 14 August 2014 and was arrested by police on 19 September 2014.  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 business partners over their disputes. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Azad Kashmir, Pakistan.  After leaving school,he worked in various jobs, got married witha family, and in 2007 formeda garment business with two business partners in his home district.

3.  As the business was profitable and successful, his two partners tried to force him out of their partnership by making various unreasonable demands of him which led to serious conflicts between them, and one night in 2011, his partners sneaked into his home to try to murder him by firing two shots at him but only injured him in his arm and leg, and he managed to make his escape from the scene to seek medical treatment in the local hospital.

4.  After his discharge from the hospital, the Applicant did not report the shooting to the police, and instead he took shelter in some relative’s home, and later fled to Karachi where he stayed for 2 ½ years without incidents, but in 2014 when he heard that his partners were looking for him in Karachi, he felt it was no longer safe to remain in Pakistan, and therefore departed in August 2014 for China, and from there he sneaked into Hong Kong andraised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form 13 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 30 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 Article2 (“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 all the relevant circumstances of theApplicant’s claim and assessed the level of risk of harm from his business partners upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there was no reason for them to still have any adverse interest in him after having already left the business all these years, that his problems with his partners were private business disputes 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 204 million people spread across a vast territory of more than 770,000 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 in large cities such as Lahore where it would be difficult if not impossible for his former business partners to locate him.

7.  On 7 November 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 22 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 17 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found such complete lack of knowledge or interest in the Applicant’s account of his business and with remarkable vagueness and discrepancies relating to the reasons for the enmity with his business partners that it found him not to be a credible witness, that none of his assertions he had made can be given any credence whatsoever, and concluded that he had failed to establish any of the facts asserted by him that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 24 July 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 in which he repeated that he would be killed by his business partners if returned to Pakistan, and that it is “a travesty of justice and contrary of natural law and spirit of common humanity” to refuse his claim and to evict him out of Hong Kong but without providing any particulars or specifics or elaboration as to why and how it was so.

10.  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.

11.  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 21 – 32 of its decision with the benefit of hearing him in his 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 Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for him to challenge the finding of the Board.  

12.  Furthermore, the fact is 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 unreasonableor 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.

13.  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.

14.  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