FAROOQ MUHAMMAD ZAHID v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 840/2018

[2020] HKCFI 227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 840 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 31-year-old national of Pakistan who entered Hong Kong illegally on 21 August 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 later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his maternal uncle who opposed his relationship with his uncle’s daughter.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Mangowal, District Gujrat, Pakistan.  After leaving school he worked in his family’s shop in the village.

3.  He had dated his maternal uncle’s daughter since the age of 15, but his uncle, a wealthy and influential businessman in the village, was against their relationship as he regarded the Applicant as poor and not suitable to marry his daughter, and so in 2007 his uncle married his daughter to another man.

4.  After their marriage the Applicant’s cousin moved with her husband to Lahore, yet in 2008 she secretly met with the Applicant somewhere in Lahore, during which she warned him to be careful of her father who regarded him as an enemy.

5.  Somehow, the Applicant’s uncle discovered their secret meeting, and one day in 2009 he sent his men to the Applicant’s home armed with guns who then started shooting at his house, and only left when they could not find the Applicant at home as he was then working in his shop.

6.  After the shooting incident, the Applicant reported the matter to the police, but no action was taken by them as they claimed that the Applicant was unable to prove that his uncle was behind the incident.

7.  Sometime later in April 2009 the same group of men came again to the Applicant’s home while he was working in his shop, and again when they did not find him at home, they started shooting at his house, shouting that if they found him, they would kill him before they left.

8.  One day in July 2009, the Applicant again had a secret meeting with his cousin who told him that her father intended to kill him and advised him to leave Pakistan to save his life, and so on 10 August 2009 the Applicant departed for China, and from there he later sneaked into Hong Kong and raised his torture claim later taken as a non-refoulement claim for protection, for which he completed a Non‑refoulement Claim Form on 7 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.  Whilst being released on recognizance pending determination of his claim, the Applicant was arrested by police on three separate occasions for the respective offences of undertaking unauthorized employment, obstructing a police officer and possession of dangerous drugs, for which he was subsequently convicted and served two terms of imprisonment for the total period of 25 months.     

10.  By a Notice of Decision dated 30 October 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”).

11.  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 there will be any real risk of him being harmed or killed by his uncle upon his return to Pakistan due to the absence or low intensity and frequency of past ill-treatment from his uncle or his men, that it was a family dispute between them without 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 of 204 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 working experience to move to other part of Pakistan away from his home district in large cities such as Islamabad where it would be difficult if not impossible for his uncle or his men to locate him.

12.  On 13 November 2017 the Applicant 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 3 April 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 16 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

13.  In its decision the Board found that the Applicant had not suffered any ill‑treatment from his uncle or his men, that after all these years that it is doubtful that his uncle would still have any adverse interest in him, that their dispute was a private matter without any official involvement that state or police protection would be available to the Applicant, and that with reasonable internal relocation available within Pakistan for the Applicant to move to other area away from his home district to avoid any risk of being located by his uncle or his men that his claim for non-refoulement protection failed on all applicable grounds.  

14.  On 14 May 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 his Form he put forward the following grounds for his intended challenge:

(1)   that the Director and the Adjudicator reached their decisions wrongly in assessing the Applicant’s non-refoulement claim; and

(2)   that the Adjudicator failed to give the Applicant sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal.

15.  These are however all just broad and vague assertions of the Applicant containing no 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 did they reach their decisions wrongly or fail to give him sufficient time or opportunity to provide 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 as such I do not find either of them reasonably arguable for his intended challenge.

16.  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 an 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. 

17.  In the Applicant’s case, no error of law or procedural unfairness in his process before the Director or the Board or in their decisions have been clearly or properly identified by the Applicant, and as it has also 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.

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