IMRAN MUHAMMAD v. YUNG YIU WING, AN ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 45/2018

[2019] HKCFI 1787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 45 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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 33-year-old national of Pakistan who entered Hong Kong illegally on 10 September 2009 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed over a land dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Tehsil Bhalwal, District Sargodha, Punjab, Pakistan.  After leaving school he worked in various jobs in his home district.

3.  His cousin Usman owned a piece of land in the same neighbourhood.  In January 2009 Usman agreed to sell his land to Abdul, a wealthy land owner in the same area, for one million Pakistani Rupees, with 300,000 Pakistani Rupees to be paid in advance with the balance of 700,000 Pakistani Rupees upon completion of the sale, and with the applicant acting as the witness and guarantor to the agreement.

4.  However, after receiving the down payment of 300,000 Pakistani Rupees, Usman disappeared without completing the transfer to Abdul, who then approached the applicant and demanded for his cousin’s whereabouts, and when the applicant replied that he did not know, Abdul and his men proceeded to punch and kick him all over his body for several minutes before warning him that if he still failed to disclose Usman’s whereabouts or to repay the 300,000 Pakistani Rupees on his behalf within the next 10 days, he would be killed.

5.  After the assault the applicant did not make any report to the police as he believed that they would not help without any bribes, and instead he went into hiding and stayed away from home.  Ten days later when Abdul and his men came looking for him at his home but could not find him, Abdul warned his family that he would look for the applicant everywhere to kill him.

6.  Upon being told by his family of Abdul’s threat, the applicant decided it was no longer safe to remain in Pakistan, and so he instructed an agent to make arrangement for him to leave the country, but when he was on his way to meet his agent, his motorcycle was hit by a van from behind and he fell to the ground and injured his left arm and leg.

7.  After he was discharged from the hospital, he suspected it was Abdul’s men who tried to kill him by hitting him with the van, and so he fled to Lahore where he stayed for three months waiting for his agent to arrange for him to leave Pakistan, which he eventually did on 21 July 2009 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his torture claim which was later assessed as a non-refoulement claim upon the commencement of the Unified Screening Mechanism, for which he completed a Supplementary Claim Form (“SCF”) on 10 December 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  Whilst released on recognizance pending the determination of his claim, the applicant was arrested by the police for drug trafficking, for which he was subsequently convicted on 14 June 2011 and sentenced to prison for five years.

9.  By a Notice of Decision dated 24 April 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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”).

10.  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 Abdul upon the applicant’s return to Pakistan as low due to the low intensity and frequency of past ill-treatment from him, that it was a private personal dispute over sale of land 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 196 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 in large cities such as Karachi where it would be difficult if not impossible for Abdul or his men to locate him.

11.  By a Notice of Further Decision dated 6 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

12.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 30 April 2015, and for which he attended an oral hearing on 22 September 2017 before the Board but declined to give any oral testimony or to answer any question from the adjudicator despite the advice and invitation for him to do so by the Board.  On 27 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.  In its decision the Board found discrepancies and inconsistencies in the applicant’s account of events occurred in Pakistan in his SCF, but in the absence of any oral evidence from him to clarify or to elaborate his claim, it considered on the basis of the available materials and for the analysis and reasoning set out in paragraphs 21 – 31 of its decision that the applicant failed to establish the harm he claimed to fear and therefore did not warrant non-refoulement protection under any of the applicable grounds.

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

(1)  failure on the part of the Director to appreciate or give proper importance or weight to the presence of state acquiescence in the applicant’s case which led to an unfair or unreasonable rejection of his non-refoulement claim;

(2)  failure on the part of the Director to recognize that the applicant was tortured at the behest of or in full collusion of the police and state law enforcement agencies as well as politicians;

(3)  failure on the part of the Director to recognize that the state should be rendered liable to the applicant by reason of the failure of the state and public officials to provide reasonable protection to its citizens;

(4)  failure on the part of the Director to take into account such argument or to give sufficient weight in such argument before reaching his decision;

(5)  failure on the part of the Director to consider or give sufficient weight to relevant COI that supported the applicant’s claim that the police in Pakistan would not be able to protect its citizens;

(6)  that the Director had shown unfair attitude towards the applicant in relying on COI which suited his pre-conceived conclusion;

(7)  failure on the part of the Director to recognize that corruption and incompetency in the administration in Pakistan was still a serious problem as evidenced by human rights reports which supported the applicant’s case;

(8)  failure on the part of the Director to apply high standards of fairness in assessing the applicant’s claim;

(9)  failure on the part of eth adjudicator to make sufficient enquiries before finalizing his determination; and

(10)  failure on the part of the adjudicator to give the applicant sufficient opportunity to arrange relevant evidence for 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 the decision, or in what way was state acquiescence relevant to his case as there was simply no evidence of him ever being tortured by anyone let alone by the police or on their behest or in their collusion, or how did the Director fail to take into account or to place sufficient weight in the relevant COI or to apply high standards of fairness, or how did the adjudicator fail to give him sufficient opportunity to adduce relevant evidence in support of his case when he declined even to answer any questions and never raised any such request during his hearing before the Board.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in the absence of which I do not find any of them reasonably arguable for his intended challenge.

16.  The applicant’s claim was rejected by the Board essentially based on its adverse finding on his credibility, of which the applicant did not help by refusing to give further evidence or to answer questions to clarify or elaborate his case at the invitation of the adjudicator as there was no objective evidence to support his material assertions.  Based on his evaluation of the evidence available, the adjudicator rejected the applicant’s claim on the basis of his failure to substantiate his claim, which was well within the province of the adjudicator as has been repeated emphasized by the Court of Appeal, and with which the court in its judicial review jurisdiction will not likely interfere: 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.  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.

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.

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