HAIDER RAJA NOSHERWAN ALI v. DIRECTOR OF IMMIGRATION

HCAL 57/2017
[2018] HKCFI 198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 57 of 2017

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 (Order by Deputy High Court Judge Bruno Chan):  

1.  The applicant is a 35 year-old Pakistani man who entered Hong Kong illegally from China on 18 October 2009 and was arrested by the police on the same day.  He was later referred to the Immigration Department and on 20 October 2009 he lodged his claim for non-refoulement protection with the Director of Immigration (“the Director”) on the ground that he feared that if he were to return to Pakistan he would be harmed or killed by a supporter known as A of the ruling political party Pakistan Muslim League – Nawaz (“PMLN”) as a result of a fight between them during a local election in 2004 at his birthplace in Jhelum, Punjab, Pakistan.

2.  The applicant’s claim was assessed by the Director on all 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 (“CIDTP”) under Article 3 of Section 8 of the Hong Kong Bill of Rights (“HKBOR”) 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”), and on 21 August 2015 it was rejected by the Director on all these grounds.

3.  On 31 August 2015 the applicant filed his notice of appeal/petition to the Torture Claims Appeal Board (“TCAB”) and requested for an oral hearing before the Board, but before that hearing the Director by way of a letter dated 12 September 2016 invited him to submit additional facts if any relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under Article 2 of Section 8 of the HKBOR, particularly the right to life (“BOR 2 Risk”), and after reviewing the applicant’s claim the Director by a letter dated 28 October 2016 concluded that the applicant had failed to establish a personal and real risk to his absolute and non-‌derogable rights under BOR 2 being violated upon his return to Pakistan, and accordingly his claim was rejected again.

4.  In his appeal/petition to TCAB the applicant challenged these decisions of the Director and appeared at the oral hearing on 1 November 2016 in person before the Adjudicator of TCAB during which he gave evidence and answered questions from the Adjudicator.  On 23 January 2017 the Adjudicator dismissed his appeal and confirmed both decisions of the Director.  On 27 February 2017 the applicant filed his application with a supporting affirmation for leave to apply for judicial review of the Adjudicator’s decision, which is the matter now before me.

5.  Before proceeding to consider that leave application, it would be necessary for me to first summarize the relevant background information based on the details set out in both the decisions of the Director and the Adjudicator as follows.

6.  The applicant is single and comes from a village in Jhelum City, Punjab, Pakistan.  He is one of six children of his parents who still live with some of his siblings in that village.  He has had 12 years of education and after leaving school he worked as a shopkeeper in Jhelum from 2000 and 2003, following which he then worked occasionally on various odd jobs.  He had been a supporter of the Pakistan Muslim League-Quald-e-Azam (“PMLQ”) since the age of 18 but did not hold any official post or duty in the party.

7.  The election incident in 2004 which formed the background to his claim involved a dispute with A who lived in the same village when both were helper for their own political party at the polling booth during a local election for the position of Nazim between candidates from the two rival political parties, when a fight broke out between the two of them during which A slapped the applicant’s face who then pushed him away.  They were immediately separated by members of the parties and were asked to leave which they did but not before A had made a threat to the applicant which he took it to mean that the matter between them was not over.

8.  Although there had been no further physical contact between them, the applicant claims that A had since caused three false allegations against him to the local police resulting in him being arrested and mistreated by the police on one occasion.

9.  The first one occurred in February 2005 when the applicant was falsely accused of taking part in a fight with some cousins of A during a cricket match in which he claims he was not even present, and that as a result he was detained by the police for seven days during which he was subjected to daily interrogation and beaten by police officers with a leather strap before he was able to make bail and later had his case dismissed by the court.  In support of his claim the applicant produced a copy of the First Information Report (“FIR”) made by one of A’s cousins to the police containing the false allegation against him but which the applicant believes A was the mastermind behind it.

10.  The second allegation came a few days after the applicant’s release on bail in February 2005 when another cousin of A complained to the police accusing him of breaking into his house to cause damage to its contents as an act of revenge against A, but before the police could arrest him the applicant was able to obtain legal assistance and made bail, and that eventually the case was again dismissed by the court.  Given the close proximity in time between the two incidents, the applicant believes that A was again behind this false allegation being made against him.

11.  The third allegation occurred quite a bit later in July 2009 according to the applicant’s statements made to the Immigration Officer when he first lodged his non-refoulement protection with the Immigration Department, in which A’s mother who also lived in the same village filed a FIR to the police falsely alleging that the applicant with some other members of his family had damaged her house and its contents as well as stolen some of her valuables, and when he heard that the police was looking for him, he decided to hide in the house of his cousin in Gujrat until later when his father was able to obtain legal assistance for him to make bail and that he was later acquitted by the court.  In support the applicant also produced a copy of the FIR, and for similar reasons he believes that A was again behind this false allegation.

12.  That was however not the end of A’s action against him as he claims that a few days after his acquittal his father ran into A on the street when A made further threats against him.  As a result he realized that it was no longer safe for him to remain in his home village and that it was his family’s advice that he should leave Pakistan altogether, and so he obtained a passport and travelled to Islamabad where he left Pakistan on 7 October 2009 to fly to Urumqi from where he took a bus for Mainland China, arriving in Shenzhen on 8 October 2009.

13.  While in Shenzhen he did not do anything much except remained in a hotel until 18 October 2009 when he was arranged by an agent to sneak into Hong Kong on a boat where he was arrested by police on the same day.  It was during his detention in Hong Kong that he learnt from a cellmate that he could seek protection here when he then lodged his torture claim with the Immigration Department.  In support of his claim the applicant also produced a 16-page printout extracted from Wikipedia about the two rival political parties PMLN and PMLQ and the two FIR referred to above in Urdu with corresponding English translation.

14.  As stated above the applicant’s non-refoulement claim was then assessed by the Director on all applicable grounds, including Torture Risk, BOR 3 Risk and Persecution Risk, and on the following structure:

(a) how likely it was that that his feared treatment would materialize;

(b) consideration of the claimed BOR 3 Risk;

(c) consideration of whether the claim called for persecution non-refoulement;

(d) consideration of the claimed torture risk under Part VIIC of the Immigration Ordinance; and

(e) consideration of the documents in support of the claim.

15.  On the information and evidence before her the Director found A’s actions against the applicant over the years as low in terms of intensity and frequency, which was indicative of a small future risk of harm to him upon his return to Pakistan, as he had been able to live and work safely in the same neighborhood of Jhelum between 2005 and 2009 without encountering other incidents, and that other than his own words, there was no evidence to corroborate his claim that those false allegations made to the police against him were by A, or that A had used his power or influence to cause his relatives to make those false allegations to the police.  With the evidence before her I agree that the Director was entitled to make such findings. 

16.  As for the two FIR produced by the applicant as evidence, I agree with the Director that at the highest they served only to confirm that reports or complaints had indeed been made to the police by A’s relatives against the applicant together with the others, that it does not necessarily follow that they were false, let alone instigated by A, whilst the suggestion that when A wanted to rebuild his house in 2009 as alleged by the applicant, or in 2007 as indicated in the FIR, and that after pulling down part of the house it then dawned on A to use it to falsely accuse the applicant of damaging his house, where there is clearly inconsistency between the date of the FIR and the applicant’s account that I agree that the Director was entitled to find these allegations as mere speculations totally unsupported by evidence.

17.  Similarly, having found no evidence to suggest that the police had acted in favor of A or under his influence in any of those incidents, or that any government officials or anyone acting in an official capacity had been involved in collaboration with A against the applicant, I agree that the Director was entitled not to accept the applicant’s claim that he will be subject to a risk of ill-treatment or harm upon his return to Pakistan, notwithstanding that A is a supporter of the ruling political party, as there is no evidence to suggest that he has any post in PMLN other than being assigned as a helper overlooking the voting process and assisting people to cast their votes at the polling booth in that election incident in 2004, no more than what the applicant was assigned to do in PMLQ.

18.  Whilst accepting corruption was common within lower levels of police in Pakistan, the Director did nevertheless make a fair assessment of the applicant’s claimed fear of harm and ill-treatment from the police upon his return to Pakistan within the context of objective COI listed in the appendix to her decision, in that proper state protection and internal relocation are available to the applicant to further lower or negate his perceived fear, and given the fact that Pakistan has a population of over 199 million spread over a vast territory of more than 796,000 square kilometers and thus further lower or negate his perceived fear.

19.  In conclusion the Director correctly found that the applicant’s claim of fear of harm or ill-treatments all fell far short within the context of Torture Risk, BOR 2 Risk, BOR 3 Risk and Persecution Risk, and therefore rightly rejected his non-refoulement claim.

20.  As noted above the Adjudicator of the TCAB treated the applicant’s appeal/petition as a rehearing of his claim, and after applying the same legal principles in his assessment of all applicable grounds based on the applicant’s evidence and the information and documents provided by him, and upon hearing him at the oral hearing in which the applicant gave further evidence and answered questions from the Board, the Adjudicator made his own findings on the facts and evidence before him, rejected the applicant’s claim and confirmed the Director’s decisions on 23 January 2017.

21.  In his assessment of the applicant’s claim the Adjudicator in particularly took issue with his credibility when he found that he has failed to establish that there are substantial grounds for believing or a real risk or chance that he would suffer persecution or harm sufficient to warrant non-refoulement protection if he returned to Pakistan, as he was found to have not given an honest account of the reason he left Pakistan and how he ultimately came to arrive in Hong Kong, including “significant different versions given by the applicant on different occasions”, and that he was satisfied that these differences were not errors of recollection but the result of dishonesty on his part, as explained in details by the Adjudicator in his decision.

22.  The Adjudicator of course had had the benefit of hearing the applicant in person when assessing his credibility, and one of those “different versions” given by the applicant was at the hearing about the last false complaint relating to the demolition of the house in which A and his mother lived, which the Adjudicator found as part of the several inconsistencies in his account of what occurred then in Pakistan, as he elaborated in his decision:

“ 71. On one account, first given by him at the hearing, it occurred in 2007. The police investigated it and dismissed it as being bogus. A attempted to resurrect the complaint two years later in 2009. There is no suggestion that A, between the dismissal of his first complaint and his attempt to resurrect it, attempted to take the law into his own hands and harm the Applicant. But this latter account is not the account that the Applicant had given to the Immigration Department. On that account, despite living in the same village, A had done nothing to prejudice the Applicant for over four years before suddenly instigating his mother to include the name of the Applicant amongst those whom she claimed had demolished her house.”

23.  The Adjudicator then went on to explain why he decided to attach no weight to the applicant’s accounts of this complaint:

“ 72. It is not only the several inconsistencies in the Applicant’s account of what occurred then and subsequently that have led me to attach no weight to the Applicant’s accounts of this latter complaint. Even ignoring the inconsistencies, on the Applicant’s account, following the lodging of the FIR on 17 July 2009, the police had come to his home in his absence in an attempt to arrest him. After that, at some stage depending on which story the Applicant has told, the Applicant’s father met A in the street who told him that he would not ‘spare’ the Applicant. This led to the Applicant moving to Gujrat where he later decided to apply a passport and leave Pakistan. That account simply cannot be true bearing in mind that the Applicant’s passport was issued on 8 July 2009, before the FIR allegedly filed by A’s mother was filed. The Applicant was unable to give any credible explanation as to how this could have come about. The best he could do to say ‘maybe when we applied there was a mistake in the date in the application form.’”

24.  On the basis of such inconsistencies in his evidence I agree that the Adjudicator was entitled to find that the applicant has failed to establish there are substantial grounds for believing or a real risk or chance that he would suffer persecution or harm sufficient to warrant non-refoulement protection if he returned to Pakistan.

25.  The Adjudicator then found that even if the applicant were indeed at risk of persecution or any serious harm from A if he returned to his home area, he could still safely and reasonably live and work elsewhere in Pakistan, in particularly large cities as Lahore and Karachi, as there is nothing to suggest that A would be able to trace the applicant throughout Pakistan, nor is there any evidence that he would be able to utilize any network within PMLN to trace the applicant to pursue a private vendetta against the applicant.  On this basis I agree that the Adjudicator was entitled to arrive at the conclusion as he did.

26.  In his affirmation of 27 February 2017 in support of his leave application for judicial review of the Adjudicator’s decision, the applicant complained that he was unable to submit his additional facts and grounds on BOR 2 Risk so that the Director had reached her further decision without those additional facts, nor did the Adjudicator rely on those additional facts, and that there are some error in law in his decision in dismissing his claim without any further explanation or elaboration.  It is therefore not clear what additional facts and grounds that the applicant was referring to in his affirmation that he was unable to produce, but it seems that these are the only grounds that he wishes to rely on in his application.

27.  There is however an earlier letter from the applicant dated 13 February 2017 where he referred to a letter dated 25 October 2016 presumably from the Immigration Department inviting him to submit any additional facts relevant to his claim but which he claimed to have never received and hence was unable to submit additional facts or information related to his non-refoulement claim under BOR 2 Risk.

28.  The applicant did proceed to set out in his letter what he claimed to be new information relevant to his case, and by applying a high standard of fairness to him by assuming that indeed he never received that letter of 25 October 2016 from the Immigration Department and by allowing him to do so with this letter, a close examination thereof reveals that he was merely repeating what he had earlier already told both the Director of Immigration and the Adjudicator of TCAB about his fear of harm from A and his influence on the police as a supporter of PMLN, and that his concern about his whereabouts being leaked out if he were to return to live anywhere else in Pakistan is mere speculation and unsupported by any evidence.  And hence he has failed to advance his case in any way with any such so-called new information to satisfy even the minimum threshold for granting leave to apply for judicial review.

29.  In conclusion I do not see any errors of law or unfairness as to procedures in the proceedings before the Immigration Department or the Board and that there is no reasonably arguable basis to challenge those decisions or the fairness of those processes.  Accordingly leave to apply for judicial review is refused.

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