NAWAZ KHAN QURESHI v. IMMIGRATION DEPARTMENT

HCAL 180/2018

[2020] HKCFI 147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 180 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 48-year-old national of Pakistan who arrived in Hong Kong on 22 April 2004 with permission to remain as a visitor up to 6 May 2004 when he did not depart and instead overstayed until he was arrested by police on 3 May 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by some fellow villagers 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 Haji Khel in Federally Administered Tribal Areas (“FATA”), Bara, Khyber, District Peshawar, Pakistan in a Sunni Muslim family.  After leaving school he married his present wife, and raised a family with several children in his home village.

3.  His wife came from a wealthy Qadiani or Ahmadi family in the village where the Qadianis represented the majority of the population while the Applicant’s Sunnis were only a small community in the village.

4.  In about 2000 the Applicant purchased a piece of land in the village with the intention of building a mosque and a school for the local Sunni community, but when the Qadianis majority in the village heard about it, they raised their objections led by Abdullah,the cousin of the Applicant’s wife, who was a powerful and influential man in the village with political connections, and who demanded that the Applicant should stop his construction to avoid violent consequences, and that on one occasion in 2002 the Applicant was even attacked by several bodyguards of Abdullah when they punched and kicked him violently,yet the Applicant insisted on carrying on with his construction.

5.  One day in 2003 when the Applicant brought his daughter to inspect the constructions on his land, several bodyguards of Abdullah drove by in a car and threw a grenade and shot at him with machine guns which wounded him but his daughter was killed when the grenade exploded near her.  

6.  Upon his discharge from hospital, the Applicant reported the matter to the police who however declined to take any action as they claimed to have no jurisdiction over FATA,and so the Applicant was advised by his uncle to seek assistance from the village elders,but before he could do so, his uncle was gunned down by Abdullah’s bodyguards.

7.  Thereafter the Applicant fled from his home village to take shelter in Peshawar. However, several months later one day he was arrested by police whom he suspected were sent by Abdullah over some false charges made against him, and during his detention in the Ramdas police station he was threatened by the officers to sign a document to transfer his land to one of Abdullah’s bodyguards, and when he refused, he was beaten and tortured until he lost consciousness.  Eventually he was released and was brought to the hospital for medical treatments.

8.  After his discharge from the hospital, the Applicant decided to return to his home village to fetch his family to Peshawar, but on his way home his car had a punctured tyre,and when he pulled over to an auto-shop to change his tyre, some men drove by and shot at him but missed him and instead injured the shop owner.  One of the passers-by who came to help and who was a Hong Kong resident then advised that the Applicant should leave Pakistan for Hong Kong to save his life.

9.  Upon returning home the Applicant told his wife of what happened, and with her support he decided to leave Pakistan for his own safety, and so on 22 April 2004 he departedfor Hong Kong, and upon his arrest by the police for overstaying, he raised his torture claim which was later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism (“USM”), for which he later completed a Supplementary Claim Form on 14 April 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

10.  By a Notice of Decision dated 31 March 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then 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”).

11.  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 Abdullah or his men to the Applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it was a private dispute between the Applicant and Abdullah over the use of land in their home village 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 the Qadiani or Ahmadi population represents only a very small minority in Pakistan whereas the Sunni Muslims, of which the Applicant is one, represent 96% of the population, and 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 many parts of Pakistan away from his home district in large cities such as Karachi where his wife and children have since been residing without incidents and where it would be difficult if not impossible for Abdullah or his men to locate him.

12.  By a Notice of Further Decision dated 1 June 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submitadditional 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”).

13.  By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 13 April 2015, and for which he attended an oral hearing on 3 October 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  Upon completing his own testimony the Applicant requested an adjournment in order to call a witness to give evidence in support of his claim, to which the Board acceded and adjourned the hearing to 1 March 2017 when a Mr Wahab attended as the Applicant’s witness to give evidence but which wholly contradicted the Applicant’s own evidence.  On 1 February 2018 the Applicant’s appeal was dismissed by the Board which also confirmed the decisions of the Director.

14.  In its decision the Board recorded the following evidence of the witness which it found to have contradicted the Applicant’s case:

“ 24. Mr Massaud Khan Wahab (‘Wahab’) stated in the hearing that he was a close relative of the Appellant and had known the Appellant for 30 years. He stated that the Appellant had submitted fake information to the Immigration Department. The Appellant had a wife, children, brothers and sisters they all living very well in Pakistan. They all requested him to help the Appellantto come back to Pakistan. The story told by the Appellant to the ImmigrationDepartment was all faked and the Appellant has no any life threat in Pakistan. The Appellant had no problem in Pakistan. His wife, children did not see the Appellant for 14 years and they all wanted the Appellant to come back to Pakistan. In the hearing Wahab stated that the Appellant’s daughter Sana was not killed in a bomb blast, the Appellant has two daughters they all lived well in Pakistan. He visited the family of the Appellant on 26 October 2016 and 12 November 2016.”

15.  The Board then proceeded to consider all the evidence as a whole and found the Applicant to be not a credible witness, that the contradictory evidence of his witness had further cast doubt on the credibility of his case, and that in any event state protection would be available if needed that it concluded that the Applicant’s claim failed on all applicable grounds.

16.  On 7 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he wanted to “appeal and review and to reject the decision made by the immigration department against my claim. They disregard my dangerous situation.”

17.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for them who 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.

18.  In the Applicant’s case, the Board rejected his claim based on its adverse finding on his credibility for the detailed and thorough analysis and reasoning set out in paragraphs 35 – 49 of its decision and with the benefit of hearing him in oral evidence and answers to questions raised of his claim as well as the evidence of his own witness which contradicted his case, and in the absence of any error of law 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.

19.  Furthermore, the fact 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 decision also confirmed by the Board,there is simply no justification to afford him with non-refoulement protection in Hong Kong:see TK v Jenkins & anor [2013] 1 HKC 526.

20.  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.

21.  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