MUHAMMAD NASEER v. DIRECTOR OF IMMIGRATION

HCAL 1394/2018

[2020] HKCFI 171

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1394 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 43-year-old national of Pakistan who entered Hong Kong illegally on 4 June 2011 and was arrested by police on 4 July 2011.  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 a certain member of rival political party Pakistan Muslim League (N) (“PML(N)”) for refusing to join his party.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Mohra Dehran, District Rawalpindi, Punjab, Pakistan.  After leaving school, he worked as a tractor driver in his home village, and in 1997 became a supporter of the political party Pakistan Tehreek-e-Insaf (“PTI”) without holding any position in the party, nor did he participate in any of its activities other than voting for the party during general elections.

3.  In 1998 he started to work as a tractor driver for his village councilor Malik who was a wealthy and influential man in the village with political connections as a PML(N) member.

4.  In about 1999 when Malik found out that the Applicant was a PTI supporter, he tried to persuade him to change his support to PML(N), and when the Applicant refused, Malik started to treat him poorly by reducing his wages and then stopped paying him altogether. As a result the Applicant quit working for Malik in 2000 when he went to another town to work for another person.

5.  However, in late 2001 Malik discovered where the Applicant was, and started to send his men to threaten him with violence if he still refused to change his support for PML(N).As a result the Applicant had to keep changing his job to avoid further threats from Malik.

6.  One night in 2009 the Applicant was told that one of his brothers had been found dead near their home, and while no one saw how he was killed, the Applicant suspected that it was Malik who had sent men to kill the Applicant but mistook his brother for him.  

7.  As the police were unable to find any evidence as to who had killed the Applicant’s brother and hence no arrest was made, and with Malik continuing to send his men to threaten the Applicant to return to work for him or to change his support to PML(N), the Applicant had to keep moving to various places for the next two years in order to avoid Malik and his men.

8.  In 2011, the Applicant decided that it was not safe to remain in Pakistan, and so on 28 May 2011 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 22 June 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.  By a Notice of Decision dated 19 August 2015 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 risk of harm from Malik or his men upon his return to Pakistan as low due to the absence or low intensity and frequency of past ill-treatment from them, that in the absence 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 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 or Karachi where it would be difficult if not impossible for Malik or his men to locate him.

11.  By a Notice of Further Decision dated 7 February 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 ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 27 August 2015, and for which he attended an oral hearing on 7 March 2017 before the Board during which he however elected not to give further evidence or to answer questions raised of his claim by the adjudicator for the Board.  On 9 July 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.  In its decision the Board found it doubtful that Malik would be so anxious in getting political support from someone like the Applicant of lowly status with no formal position in his party that he would expend such manpower and resources to look for him everywhere in Pakistan all those years or that he would still have any adverse interest in him since he left Pakistan in 2011, and that with state protection and reasonable internal relocation available for the Applicant to move safely to other part of Pakistan away from his home district without any risk of being located by Malik or his men that his application for non‑refoulement protection failed on all applicable grounds.

14.  On 16 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, and in his supporting affirmation of the same date he merely repeated his claim that his life was in danger in Pakistan and that it was a travesty of justice and contrary to natural law and spirit of common humanity and brotherhood to refuse his claim and evict him out of Hong Kong but without providing any particulars or specifics or elaboration why it was so.  As such 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 findings of the Director or the Board.  

15.  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.

16.  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.

17.  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.

18.  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