IFTIKHAR MUHAMMAD v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 762/2018

[2020] HKCFI 1035

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 762 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 40-year-old national of Pakistan who entered Hong Kong illegally on 26 January 2016 and surrendered to the Immigration Department on 1 February2016 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by members of the political party Muttahida Qaumi Movement (“MQM”) for deserting the party and/or by radicals of rival Sunni Movement (“SM”).  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Asghar, Tehsil Hazro, District Attock, Punjab, Pakistan.  After leaving school he worked in his family’s restaurant in Karachi.

3.  One day in July 2011 some men armed with pistols came into the restaurant claiming to be MQM members and demanded 10,000 Pakistani Rupees as extortion money, and when the Applicant claimed to be without sufficient money, they warned that they would return in a few days when he should have the money ready.

4.  When these men returned later but the Applicant refused to pay them the money, they proceeded to punch and kick him all over the body until some customers intervened,and before they left they threatened that the Applicant would be killed next time when he still failed to pay them the money.

5.  To avoid any further harassment the Applicant approached a senior member of MQM for help, and after that those men did not show up again, and the Applicant later joined the party but held no position other than just attending some of their activities.

6.  By 2013 however the political situation in Pakistan became more volatile and tension between MQM and other rival political parties increased that the Applicant became concerned for his own safety due to increasing violent conflicts with supporters from rival parties including SM’s radicals, and also fearful of arrests by the police due to the illegal activities including extorting money of other members of MQM that he in March 2015 left Karachi and returned to his home village without participating any more of the MQM activities.

7.  However, upon hearing that the MQM members were looking for him everywhere,the Applicant decided it was no longer safe to remain in Pakistan, and so in January 2016 he departed for China, and from there he later sneaked into Hong Kong and raised his non- refoulement claim, for which he completed a Non-refoulement Claim Form on 31 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 20 November 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”).

9.  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 will be any real and substantial risk of him being harmed or killed by MQM members or supporters of other rival parties upon his return to Pakistan 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 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 moveto other part of Pakistan away from his home district in large cities such as Muzaffarabad orLahore where it would be difficult if not impossible for his perceived enemies to locate him.

10.  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 on6April 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 24 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found no reliable evidence that the MQM members had targeted the Applicant or were looking to harm him, or any evidence of any risk of harm from SM’s radicals or supporters of other rival parties, that given that he held no important position in his party that there was no reason why any of them would want to target him, and that in any event that state protection as well as reasonable internal relocation alternatives would be available to him that his claim for non-refoulement protection failed on all applicable grounds.

12.  On 2 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 put forward the following grounds for his intended challenge:

     (1)     that the Director failed to take into account or to give sufficient weight to the fact that the Applicant was in genuine fear that the police and the government would not be able to protect him from MQM’s threats due to corruptions before reaching his decision in rejecting the Applicant’s claim;

     (2)     that the Director failed to take proper account or give sufficient weight that the police or authorities in Pakistan would not assist or protect him in his consideration of his claim;

     (3)     that the Director’s decision that the Pakistani government has taken practical steps to monitor the conduct of its police and to improve its effectiveness was mere speculation as according to reliable COI the corruption and incompetency of the police are still extremely serious;

     (4)     that the Adjudicator failed to apply high standards of fairness required to assess the Applicant’s claim since he was legally unrepresented;

     (5)     that the Adjudicator erred in law in the same way as the Director and acted indifferently in simply in agreement with the Director’s decision in dismissing his appeal;

     (6)     that the Adjudicator’s decision that the Pakistani government has taken practical steps to monitor and improve the effectiveness of the police was similarly speculation unsupported by reliable COI; and

     (7)     that the Adjudicator failed to make sufficient enquiry before concluding that the extent and nature of the injuries suffered by the Applicant failed to attain a minimum level of severity without advising the Applicant to obtain medical report or evidence from the Pakistani government.  

13.  These are however mainly just 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 decisions, or in what way did the Director or the Adjudicator fail to take into account or place sufficient in the relevant COI as to the steps taken by the government in monitoring and improving the conduct and effectiveness of its police, or how did they fail to apply high standards of fairness or to make sufficient enquiry in assessing his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I am unable to find any basis or merits in any of them or that they are reasonably arguable for his intended challenge.

14.  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 Nupur Mst v Director of Immigration [2018] HKCA 524.

15.  In the Applicant’s case, as noted above that in none of his proposed grounds was he able to clearly or properly identify any public law error or procedural unfairness in either decision of the Director or the Board, and in the absence of which I do not see any prospect of success in his intended application.  

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