HUSSAIN AMIR v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE APPOINTED TO DETERMINE THE APPLICANT’S PETITION AND ANOTHER

HCAL 433/2018

[2019] HKCFI 445

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 433 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 32-year-old national of Pakistan who entered Hong Kong illegally on 26 January 2016 and surrendered to the Immigration Department on the following day when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncle over certain land dispute.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Tamoor Shah, Tandlian Wala, Faisalabad, Punjab, Pakistan where his father and siblings still live.  After leaving school he worked as a farmer on his grandfather’s farmland in his village.

3.  In 2002 his grandfather died without leaving any will in respect of his farmland, which was being managed by the applicant’s father and uncle without any dispute until 2008 when his uncle started to occupy the land as if his own, and when the applicant’s father took issue with it, his uncle produced some documents which he claimed to be from the government department showing that he was the rightful owner, but as his father believed that those documents were fake and intended to take legal action, his uncle then called for a meeting at his home to resolve the dispute in front of the village head, but when the applicant and his father arrived for the meeting, they were ambushed by his uncle and his men who attacked them with wooden sticks and rifle butts until being stopped by the village head, and before the applicant and his father left, his uncle threatened that he would kill them if they dared to take any further action over the land.

4.  After the assault the applicant’s father did not report the matter to the police but sought help from a friend to take the case to court, but when the applicant heard that his uncle had made a false claim against him for murdering a fellow villager and that the police were looking for him, the applicant fled from his village to hide in Faisalabad and Lahore, and later to Mirpur, Kashir in 2011 at a friend’s place where he stayed without any further incidents for the next several years until one day in 2015 when his uncle was seen with some policemen in the neighbourhood, the applicant feared it was no longer safe to remain in Pakistan as his uncle was a powerful and influential man with connection to the then ruling party Pakistan Muslim League (Nawaz) (“PML(N)”), and so on 21 January 2016 he departed for China, and from there he sneaked into Hong Kong and raised his non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 25 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 19 September 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”).

6.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that there would be any real risk of him being harmed or killed upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from his uncle, that there was no real intention of his uncle to harm him since his father who was entitled to reclaim the land had not encountered any further problems from his uncle all these years, that it was a private family dispute without any official involvement that state or police protection would be available to the applicant if resorted to, that there was no independent reliable evidence that the applicant was being sought by the Pakistan police over any false claim, 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 Islamabad or Karachi where it would be difficult if not impossible for his uncle to locate him.

7.  The applicant then 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 23 February 2018 before the Board during which he confirmed his claim as stated before but declined to answer any questions put to him by the adjudicator for the purpose of clarifying his claim.  On 9 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found the applicant’s unwillingness to answer questions at the hearing did not show a genuine effort to substantiate his story, that as a result important questions about his claim remained unclarified that the Board was not satisfied on the material available that the applicant was being sought by the police over any criminal charge, that even if that was true the question of whether he was evading persecution or prosecution remained unanswered, and that even accepting that his family may have been involved in a dispute with his uncle over land in Faisalabad back in 2010, it was not satisfied on the materials available that the applicant has established that there are substantial grounds to support a finding that he still faces a genuine and substantial risk upon his return to Pakistan under any of the applicable grounds.

9.  On 19 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, and in it he put forward the following grounds for his intended challenge:

(1)  that the director and the adjudicator reached their decisions wrongly in assessing his claim;

(2)  that their decisions were not fair or reasonable as required by the Wednesbury test;

(3)  that they failed to take into consideration that right to life must be protected from extra-judicial killings which he may face if deported to Pakistan; and

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

10.  These are however all very 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 their decision, or in what way were their decisions unfair or unreasonable, or how would extra-judicial killings be relevant to his claim, or how did the adjudicator fail to give him sufficient time or opportunity to produce his evidence in support of his claim or appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and even now in his application before me or at the oral hearing he did not produce any further evidence or argument for his claim.  As such I do not find any basis or merits in any of his grounds or that they are reasonably arguable for his intended challenge.

11.  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 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 Re Litoun Mounsy [2018] HKCA 537.

12.  In the applicant’s case, as held in Re Moshsin Ali [2018] HKCA 549, it is no longer open to him to challenge the Director’s decision by way of judicial review once his appeal to the Board has been pursued and that the Director’s decision has been superseded by the Board’s decision.

13.  As for the Board’s decision, as the applicant declined to answer any questions from the adjudicator so as to clarify his claim, the Board was entitled to make its findings and evaluation of his asserted risk of harm based on the evidence and materials available and for the reasons as set out in paragraphs 33 – 48 of its decision in rejecting his claim and dismissing his appeal, and in the absence of any legal error or procedural unfairness being identified by the applicant, I do not find any arguable ground or reason to interfere with the Board’s decision.

14.  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 subsequently 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.     

15.  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.

16.  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