ALI JAMSHAID v. IMMIGRATION DEPARTMENT AND ANOTHER

HCAL 511/2018

[2020] HKCFI 1274

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 511 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 34-year-old national of Pakistan who entered Hong Kong illegally on 15 October 2013, surrendered to the Hong Kong police on 6 March 2014 and was referred to the Immigration Department on the next day when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of rival political party Pakistan Muslim League (N) (“PML(N)”) and/or by the police over some false cases made against him.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Mari Wranchan, Jalalpur Jattan, Gujrat, Punjab, Pakistan.  After leaving school, he did some farming in his home village, and followed his parents’ footstep to become a supporter of Pakistan Peoples Party (“PPP”) regularly putting up posters in his village and recruiting villagers for his party.

3.  As many of the other villagers were PML(N) supporters, the Applicant and his PPP supporters soon began to experience hostilities from them, and one day in 2009 while he was driving with his fellow PPP supporters through the village, they were approached by another car with PML(N) supporters who waved their guns at them to threaten them.

4.  On another occasion in May 2010 while the Applicant and his fellow PPP supporters were attending a wedding in the village, some PML(N) supporters fired gun shots over their heads which caused the Applicant to confront and rebuke them, but afterwards a false case was made to the police against him over the incident which was later only withdrawn after his party had paid a bribe to the police.

5.  One day in May 2012 while the Applicant was standing outside his family’s farmhouse, a shot was fired from the distance that hit a wall of the farmhouse, and although he was unable to see the shooter, he suspected that it was a warning shot from the PML(N) people, and therefore reported the matter to the police, but no follow-up investigation appeared to have been taken by them.

6.  Several weeks later a fire fight broke out between supporters of the two rival parties in the village in which one of PML(N) supporters was killed, and although the Applicant was not involved, he was subsequently arrested by the police after those PML(N) supporters had made certain false charges against him, and during his detention in the police station, he was beaten by some policemen who were trying to force a confession from him.  Several days later he was brought before a court and was subsequently charged and convicted of robbery and was sentenced to prison for 6 months.

7.  Upon his release from prison, however, the local police continued to keep the Applicant under surveillance and would arrest him for interrogation every time there was a robbery in the village, and in order to avoid such police harassments or further threats from those PML(N) supporters, the Applicant therefore fled from his home village to take shelter in a friend’s place in Sargodha for several months without incidents, and thereafter he moved to stay at his aunt’s place in Village Darekari where he subsequently paid an agent to make arrangements for him to leave Pakistan, which he did on 28 September 2013 when he flew to 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 9 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

8.  By a Notice of Decision dated 26 May 2016 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 Ordinance, 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”).

9.  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 harmed or killed by those PML(N) supporters upon his return to Pakistan due to the absence of any reliable evidence of any past ill-treatment from them or that he was being pursued by the local police, 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 show that reasonable internal relocation alternatives are available in Pakistan with a large population spread across a vast territory 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 where it would be difficult if not impossible for those PML(N) supporters to locate him.

10.  By a Notice of Further Decision dated 7 April 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”).

11.  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 3 June 2016, and for which he attended an oral hearing on 18 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 2 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board found various inconsistencies discrepancies and contradictions in the Applicant’s evidence of his claim as well as various mistakes and incorrect information from him regarding PPP that it seriously doubted his alleged involvement in that party or of the threats from rival PML(N) supporters that it was not satisfied that he would risk being harmed or killed by them or by the police upon his return to Pakistan, and that in any event in the absence of any reliable evidence of any official involvement that state protection would be available as well as reasonable internal relocation for him to move safely to other area of Pakistan away from his home district to re-establish his life and work without any risk of being located by those local PML(N) supporters that his claim for non-refoulement protection failed on all applicable grounds.     

13.  On 28 March 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 stated that he was not satisfied with their decisions without providing any particulars or reasons as to why other than the claim that he cannot go back to his home country because his life would still be in danger there, nor did he request for any oral hearing for his application. 

14.  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.

15.  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 51 – 60 of its decision with the benefit of hearing 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 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.   

16.  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.     

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