MAHMOOD QAISAR v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 278/2018

[2019] HKCFI 225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 278 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 30-year-old national of Pakistan who entered Hong Kong illegally on 1 February 2016 and surrendered to the Immigration Department on 29 February 2016 when he subsequently lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by some members of the Pakistan Muslim League (N) (“PML(N)”) over a land dispute and/or by the local police over some false charge against him.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Kashmir, Mirpur Ajk, Pakistan.  After leaving school he worked in his share of the farmland inherited from his father and joined the political party Pakistan Tahrek-e-Insaf (“PTI”) putting up their banners and posters and participating in their rallies.

3.  In 2013 in which PML(N) won in the general election with its leader becoming the Prime Minister of Pakistan, the PTI supporters believed that PML(N) had cheated in the election and therefore organized mass protests in the country for several months in which the applicant also participated which eventually led to the arrest of many of its members and supporters.

4.  At the time some of the PML(N) members and supporters tried to harass and threaten the applicant for participating in those strikes and forcibly occupied his farmland by moving their tractors onto his land, and when the applicant tried to put up some resistance, he was severely beaten that he had to be hospitalized afterwards.

5.  Upon discharge from the hospital the applicant filed a complaint with the local police, but upon learning about it those PML(N) members then made a false claim to the police that the applicant had murdered one of their leaders. Fearing that he would be arrested by the police and would not be dealt with fairly over the false charge, the applicant fled to Islamabad to take shelter in his friend’s place, and when he heard that the police were looking for him everywhere, he then fled to Karachi where he stayed hiding until January 2016 when he decided to leave Pakistan, which he did on 31 January 2016 when he departed for China, and from there he sneaked into Hong Kong and subsequently raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

6.  By a Notice of Decision dated 24 May 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 of all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that he would be in danger of being harmed by the PML(N) members or by the police upon his return to Pakistan due to the low intensity and frequency of ill-treatment that he had experienced in the past, that his conflicts with those PML(N) members was a private land dispute that in the absence of official involvement that state or police protection would be available to him if resorted to, that there is no evidence that he was indeed being pursued by the police given that he was able to leave Pakistan without any problem, that in any event the police were merely conducting investigation and there is no evidence that the applicant would be subjected to ill-treatment as a result, 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 young man with work experience to move to other area away from his home district such as Islamabad or Karachi where he had stayed without incidents prior to his departure for Hong Kong and where it would be difficult if not impossible for those PML(N) members to locate him.

8.  On 31 May 2017 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 16 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 6 December 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found significant inconsistencies and discrepancies in the applicant’s evidence between those given to the Director and those before the Board that it formed the view that he is not a witness of truth, that he has fabricated claims in relation to his political profile and activities and the problems he experienced as a result as well as his purported land dispute, and did not accept that he was affiliated with any political party in Pakistan or that he had faced any political or land disputes from any PML(N) members as a result, and concluded that he has failed to establish any real risk of facing any of the proscribed harms upon his return to Pakistan.     

10.  On 22 February 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 in it he put forward the following grounds for his intended challenge:

(1)  that the Director and the adjudicator reached the wrong decisions in assessing his USM claim;

(2)  that the decisions of the Director and the Board were unreasonable and unfair as required by the Wednesbury test;

(3)  that their decisions failed to take into consideration of the right to life must be protected from extra-judicial killings which the applicant may face; and

(4)  that the adjudicator failed to give him sufficient time and chance to arrange relevant evidence for his non-refoulement claim and his appeal.

11.  These are however just broad and vague assertions of the applicant containing a few 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 were their decisions unfair or unreasonable, or how the adjudicator had failed to properly consider his claim under BOR 2 risk.  None of them were elaborated by the applicant with any particulars or specifics, and I do not find any merit or basis in any of these complaints of the applicant.

12.  It is also plainly wrong for the applicant to complain of not being given sufficient time or opportunity by the adjudicator to submit relevant evidence for his claim in his appeal before the Board, when he never raised any such issue nor requested for time during his oral hearing when the adjudicator raised numerous questions and queries with him and that he was given every opportunity to answer them with the assistance of an interpreter, of which the adjudicator then proceeded to evaluate and analyze in great details in paragraphs 38 – 70 of the Board’s decision as well as properly elaborating the reasons why the applicant’s credibility was not accepted and his claim rejected in conclusion.    

13.  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 being clearly and properly identified by an 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 Re Litoun Mounsy [2018] HKCA 537.

14.  In the premises and having proceeded to consider 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