ZAMIR HUSSAIN v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 201/2018

[2018] HKCFI 2807

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 201 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 62-year-old national of Pakistan who arrived in Hong Kong on 16 July 2002 with permission to remain as a visitor up to 30 July 2002 when he did not depart and instead overstayed until his arrest by the police on 9 January 2008.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by a men RJ and his associates over certain business and property disputes, and when his torture claim was rejected, he then lodged a non-refoulement claim on the same basis.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Nandana Jattal, Chock Pandori, Rawalpindi, Pakistan.  After leaving school he worked as a carpenter and later ran a shop in Rawalpindi selling clothes, joined the political party Pakistan Muslim League - Q (“PML-Q”), and got married with children who are now all grown up.

3.  In early 2002 some men claimed to be working for RJ, a Nazim in the village council and a member of the political party Pakistan Peoples Party (“PPP”) came to the applicant’s shop asking the applicant to sell his business to them, and when the applicant refused, they just left.  A few days later the men called the applicant and asked whether he had changed his mind about selling his business to them, and the applicant still turned them down.

4.  Then one day in March 2002 the applicant was kidnapped by some men and was only released two days later after his family had paid a ransom by borrowing money from his friends, and afterwards he had to sell his business in order to repay his friends.

5.  A few days later the applicant received telephone calls from the same men who wanted his business that they kidnapped him to teach him a lesson for his refusal to sell them his business, and threatened him not to stand in the way of RJ in the forthcoming election. The applicant therefore became concerned for his safety and took shelter at a friend’s place in Chack Lala for more than two months, but when he heard that RJ had sent his people to look for him in his village, he returned home to discuss the matter with his family when he decided to leave Pakistan for his own safety, and so he departed on 23 June 2002 first for China and then Hong Kong where he overstayed until his arrest by the police in 2008 and raised his torture claim, and when it was rejected on 30 November 2011, he then lodged a non-refoulement claim for which he later completed a Supplementary Claim Form and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  Whilst he was released on recognizance pending the determination of his claim, he heard from his family that after he left Pakistan, RJ and his people had continued to harass and threaten his wife and son including on one occasion assaulted his wife when she was hit on the head and lost consciousness, that his house was then set in fire, and that his property was forcefully seized by RJ and his people, and although his son was later able to obtain judgment from the Supreme Court of Pakistan to reclaim possession of the house and property, the applicant was still fearful that RJ would take revenge against him if he returned to Pakistan.

7.  By a Notice of Decision dated 31 May 2016 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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”).

8.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the risk of harm from RJ to the applicant upon his return to Pakistan as low due to the absence or low intensity and frequency of ill-treatment from RJ and his people in the past, that the evidence indicate that RJ only wanted the applicant’s business but after it had been sold and that the applicant having left after so many years that it is unlikely that he would still have any adverse interest in the applicant, that in any event RJ is no longer the Nazim in his home district and hence not a threat or as influential as before, 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 show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 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 adult with work experience to move to other areas away from his home district in large cities such as Lahore or Islamabad where it would be difficult if not impossible for RJ to locate him.

9.  By a Notice of Further Decision dated 22 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which he filed on 13 June 2016, and for which he attended an oral hearing on 23 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 30 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board upon hearing the adjudicator in evidence and upon considering the various documents produced by him found his account about his business disputes with RJ, his affiliation with PML-Q or his involvement in elections as well as the threats from RJ to be incredible, unreliable and/or implausible, and that even if any of the threats from RJ were true or still persist after all these years that the applicant with substantial work experience can easily and safely relocate within Pakistan away from his home district in large cities such as Lahore that he would not face any risk from RJ in the absence of any evidence that RJ’s influence extends beyond his home area.

12.  On 9 February 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 the wrong decision in assessing his claim;

(2)  that the decisions of both the Director and the Board were unreasonable and unfair under the Wednesbury test;

(3)  that the Director and the Board failed to take into consideration that the right to life must be protected from extra-judicial killings which the applicant 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 and his appeal.  

13.  These are however all very broad and vague assertions of the applicant containing a few 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 the decision, or in what way were their decisions unreasonable or unfair under the Wednesbury test, or how were extra-judicial killings be relevant to his case.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

14.  As for his complaint of not being given sufficient time or opportunity by the adjudicator to produce relevant evidence in support of his claim or appeal, he did not provide any particulars of how that being so, nor did he raise any issue or request for time during his oral hearing before the adjudicator.  Even now in his application and at his oral hearing before me, the applicant did not provide any additional evidence or make any further representation in respect of his claim.  In the premises I do not find any merit in this complaint of the applicant.

15.  The applicant’s claim was rejected by the Board essentially on his credibility which the adjudicator found unreliable for his detailed analysis and reasoning set out in paragraphs 27 – 39 of the decision, plus the fact is that the applicant did not make any claim for protection after having been in Hong Kong for more than five years until his arrest by the police, of which the adjudicator was entitled to take into account as damaging his credibility under section 37ZD of Part VIIC of the Immigration Ordinance.  

16.  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 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.

17.  Here as noted above clearly the applicant has failed to identify any error in those decisions of the Director or the Board, nor did he advance any effective arguments against those analysis and reasoning in the Board’s decision for rejecting his claim, and the fact that it has been established by both the Director and the Board 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 proceeded to consider 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