HCAL 715/2018
[2019] HKCFI 1351
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 715 of 2018
BETWEEN
Qasim Nadeem
Applicant
and
The Adjudicator of the Non-refoulement Claims Petition Office
1st Putative Respondent
The Director of Immigration
2nd Putative Respondent
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan :
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The applicant is a 27-year-old national of Pakistan who entered Hong Kong illegally in September 2014 and was arrested by police on 8 May 2015. After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncles over a land dispute. He was subsequently released on recognizance pending the determination of his claim.
2. The applicant was born and raised in Village Ram Dually, Faisalabad City, Punjab, Pakistan. After leaving school he worked as a factory worker in various places in Punjab.
3. In 2013 his father with his three brothers inherited from his grandfather some farmland in Faisalabad City which led to frequent dispute between his father and his three brothers over how the land and its produces should the divided and distributed amongst them.
4. One day in early 2014 his father together with the applicant and his brothers met with his uncles to discuss about their issues over the farmland when a heated argument broke out which led to a fight when his uncles attacked the applicant and his brothers with wooden sticks and knives that they sustained injuries and were admitted to hospital for medical treatments.
5. Two weeks later one evening one of his uncles came to the applicant’s home with unknown men carrying pistols to threaten to shoot him and his brothers unless they stopped their dispute over the farmland, but they managed to flee from the scene with the applicant escaping to Sindh Province where he took shelter at his friend’s place for two months before moving to another friend’s place in Quetta City.
6. In about mid-2014 the applicant was advised by his friend to leave Pakistan for his own safety as all his uncles were powerful and influential men in the village with political connections that he feared sooner or later they would be able to find him, and so in June 2014 he departed for China, and from there he sneaked into Hong Kong and subsequently raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 20 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
7. Whilst released on recognizance, the applicant was arrested by police on 15 March 2017 for taking up employment without permission and was subsequently convicted and sentenced to prison for 15 months.
8. By a Notice of Decision dated 7 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 assessed the level of risk of harm from his uncles to the applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there was no real intention on their part to seriously harm or kill him, that in any event it was a private family dispute over land 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 (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 199 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 work experience to move to other part of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for his uncles 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 on 9 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 16 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.
11. In its decision the Board found numerous inconsistencies and discrepancies in the applicant’s evidence as to his account of his family’s land dispute with his uncles that he was not a credible witness, and rejected his claims that he or his family had any dispute with his uncles over their land, or that any of his uncles had assaulted him or his brothers, or that he came to Hong Kong out of fear of harm from his uncles, and concluded that he had fabricated these claims so as to create a basis upon which to apply for non-refoulement, and hence his claims failed on all applicable grounds.
12. On 24 April 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 and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim;
(2) that their decisions were not reasonable or fair as required by the Wednesbury test;
(3) that they failed to take into consideration that his 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 in support of his non-refoulement claim as well as his appeal.
13. These are however all 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 decision, or in what way were their decisions unfair or unreasonable, or why were extra-judicial killings relevant to his claim, or how did the adjudicator fail to give him sufficient time or opportunity to provide his evidence for his claim or appeal. None of these assertions were elaborated or presented with any particulars or specifics by the applicant. In fact, even now he did not produce any further evidence which he claimed not to have been given the time or opportunity to do by the adjudicator, nor did he do so at the hearing of his application before me other than just repeating his claim of still having problems back home and that he did not want to leave Hong Kong. In the circumstances I do not find any basis or merits in these grounds or that any of them is 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, the Board rejected his claim on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 24 – 33 of its decision after having had the benefit of hearing him in his evidence and answers to questions raised of his claim, and in the absence of any legal error or procedural unfairness 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, even if his claim of threats resulted from the dispute with his uncles were true, the fact that it has been established by the Director in his decision that the risk of harm in his 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.
Dated the 5th day of July 2019.
(NG Ka-wing)
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
Notes for the Applicant :
If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
Sent to the Applicant on 5 July 2019
Qasim Nadeem
Applicant’s ref. no.:
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 5 July 2019
The Adjudicator of the Non-refoulement Claims Petition Office st Putative Respondent’s ref. no.:
The Director of Immigration nd Putative Respondent’s ref. no.:
Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
Form CALL-1