HCAL 465/2018
[2019] HKCFI 594
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 465 of 2018
BETWEEN
Mohammad Akram
Applicant
and
The Adjudicator of the
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 36-year-old national of Pakistan who entered Hong Kong illegally on 19 August 2006 and was arrested by police on 4 September 2006. 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 the family members of his girlfriend who were opposed to their relationship, and when his torture claim was rejected he then raised a non-refoulement claim for protection 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 Kala Sharif, Punjab, Pakistan. After leaving school he worked as a farmer, and in 2003 started dating his childhood friend KL from the same village and later proposed to marry her, but when her family learnt about it they raised their objection as they considered that the applicant as a poor farmer was not suitable for KL, and warned him not to see her again or to come near her home.
3. The applicant however ignored the warning and continued to see KL until one day in about 2005 when he was walked past her home he was confronted by her brother with several men who proceeded to slap and punch him until they intervened by other villagers. The applicant did not report the matter to the police, but fearing that he might be assaulted again, he ceased to have any further contact with KL.
4. A few weeks later when he was on his way to somewhere and walked past KL’s home, he was again confronted by her brother together with her father who threatened to kill him for coming near her home, and proceeded to grab him when the applicant put up a struggle and managed to escape when other villagers tried to intervene.
5. As the applicant became fearful for his life, he did not return home and instead took shelter at his aunt’s place in another village where he stayed for several months without any further incidents, but as he was afraid to return to his home village for fear of further attacks by KL’s family, he decided to depart Pakistan, which he did as arranged by an agent in April 2006 for China, and from there he later sneaked into Hong Kong where he subsequently raised his torture claim with the Immigration Department and was released on recognizance pending its determination.
6. However, he failed to answer his recognizance in August 2012, and was arrested by police on 2 September 2012 for drug possession but was released on police bail. On 19 September 2012 his torture claim was rejected by the Immigration Department and he was detained at its Castle Peak Bay Immigration Centre until April 2013 when he was released on recognizance after lodging his non-refoulement claim, but on 8 August 2015 he was again arrested by the police for theft for which he was later convicted with a fine.
7. Eventually upon obtaining legal representation from the Duty Lawyer Service the applicant completed a Supplementary Claim Form on 13 January 2017 for his non-refoulement claim and attended screening interviews before the Immigration Department.
8. By a Notice of Decision dated 24 May 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the remaining applicable grounds namely 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 former girlfriend’s family upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that if he stopped seeing KL there would be no risk of any further harm from her family, that his problem with them was a personal and private dispute 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 adult 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 KL’s family to locate him.
10. On 2 June 2017 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 5 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 8 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.
11. In its decision the Board found serious inconsistencies and discrepancies in the account of his alleged relationship with KL and the resultant threats from her family that it concluded that he was not a witness of truth and did not accept that he had experienced any problems or harm in Pakistan due to such relationship, and rejected his claim under all applicable grounds.
12. On 22 March 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 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 their decisions failed to take into consideration of the right to life to 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 to support his non-refoulement claim and for 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 their decisions, or in what way were their decisions unfair or unreasonable under the Wednesbury test, or why would he face the risk of extra-judicial killings when it was never part of his claim and was never raised before the Director or the Board when his only claim was a private and personal dispute with the family of his former girlfriend. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.
14. As for his complaint under ground (4) of not being given sufficient time or opportunity to arrange relevant evidence to support his claim in his appeal by the adjudicator, it was never raised in his appeal or at his hearing before the Board, and even in his application now before me or at the hearing he did not produce any further evidence for his claim, nor did he refer to any such evidence or provide any particulars of what further evidence that he wanted to produce. In the circumstances and given the straightforward nature of his alleged threats from KL’s family, and that more than 12 years had passed since the lodging of his claim when he had had ample time to obtain such further evidence if any, I am not at all convinced that there is any merit in this complaint of the applicant.
15. Furthermore, the fact is that it has been established by the Director in his 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, a fact which no doubt the Board would have accepted had it found it necessary to consider that issue as well, there is in my view simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.
16. 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.
17. 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 31st day of May 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 31 May 2019
Mohammad Akram
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 31 May 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