MOHAMMAD JAVED v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1231/2018

[2019] HKCFI 2587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1231 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 41-year-old national of Pakistan who last entered Hong Kong illegally on 14 August 2007 and was arrested by police on 9 January 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 his paternal uncle and his sons over a family dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Chahal, Punjab, Pakistan.  After leaving school he worked as a farmer and later in the factory in Punjab.

3.  His paternal uncle Abbas who was a wealthy and influential businessman with several sons also lived in the same area in Punjab.  In the mid-90s one of his sons was competing with the Applicant in courting his future wife which had led to violent clashes between the two families involving the use of guns and knives on several occasions that the Applicant and his eldest brother Waris had both suffered injuries which required hospitalization, and when the local police refused to take any action without bribes, the Applicant and his eldest brother decided to save their life by departing Pakistan in 2000 for Hong Kong, where they overstayed and were eventually arrested and repatriated to Pakistan in 2001.

4.  Upon returning to his home town in Pakistan, the Applicant married his wife in August 2001, but the feud between his family and the Abbas family continued, and one day in October 2001 he and some of his brothers were ambushed and attacked by his uncle’s sons that Waris and his friend were forcibly abducted that Waris was later found being shot dead while his friend was paralyzed.

5.  Upon pressing by the Applicant’s family for police action, two of the Abbas sons were eventually arrested and were subsequently convicted and sentenced by the court to 25 years in prison, and as a result the animosity from the Abbas family towards the Applicant and his family deepened, and to save their lives the Applicant and some of his brothers fled to District Sialkot where they kept a low profile to avoid any attention.

6.  However, one day in 2005 the Applicant and his friend ran into some of Abbas’ sons who then fired their guns at them, and while the Applicant managed to escape unharmed,his friend was shot and had to be taken to the hospital.

7.  On another occasion in 2006, the Applicant and one of his brothers were arrested by police over some false charges of robbery made against them by the Abbas family, and during the police interrogation at the police station, they were repeatedly beaten by the police with batons, but when they refused to confess and insisted their innocence, they were released without charge on the following day.

8.  Later in the same year, both families started to engage in negotiation to settle the grudges between them, and eventually reached settlement when the Abbas family agreed to transfer some land to the Applicant’s family as compensation for the death of his eldest brother Waris, whereupon the two Abbas’ sons convicted for his murder would be released from prison.

9.  However, soon thereafter their conflicts resumed when one of the Abbas’ sons abducted the Applicant’s brother-in-law and beat him up until his family called the police for help that he was eventually released.  Fearing that the same fate would happen to him,the Applicant decided that it was no longer safe to remain in Pakistan, and so on 7 August 2007 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police, he raised his torture claim later taken as a non-refoulement claim,for which he completed a Non-refoulement Claim Form on 18 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

10.  By a Notice of Decision dated 28 August 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 Uncle Abbas and his sons upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that his conflicts with the Abbas family were private disputes between the two families 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 770,000 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 Faisalabad or Karachi where it would be difficult if not impossible for the Abbas family to locate him.

12.  By a Notice of Further Decision dated 16 November 2016 the Director again rejected the Applicant’s claim upon receiving and considering submissions from him 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 Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 11 September 2015, and for which he attended six oral hearings before the Board with legal representation during which he gave evidence and was cross-examined as to his claim by counsel for the Director and with submissions made on his behalf by his lawyer.  On 5 June 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

14.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that his claim was totally unreliable, that his claimed conflicts with the Abbas family were due to legal disputes between the two families without any objective evidence that he had been specifically targeted by the Abbas family, that in any event that there is no evidence that the Abbas family were still pursuing him or that they would still have any adverse interest in him after all these years, and that reasonable internal relocation alternatives within Pakistan would be available to him that it would not be unduly harsh for him to relocate away from his home district to large cities such as Karachi where it would be difficult if not impossible for the Abbas family to locate him that his claim for non-refoulement protection failed on all applicable grounds.

15.  On 29 June 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 argument that the inaction of government officials can effectively hold the state liable for failing to provide protection to its citizens against risk of torture;

 (2) that the Director failed to consider or give sufficient weight to relevant COI which supported the Applicant’s case that the police or authorities in Pakistan would not assist him;

 (3) that the Director quoted different sources to conclude that the Pakistani government had taken practical steps to monitor the conduct of the police and that there were alternative avenues to seek justice in Pakistan were mere speculations;

 (4) that the Director failed to recognize that corruptions and incompetency in the Pakistani police were still extremely serious and that the situation in Pakistan were still very dangerous for its citizens;

 (5) that the adjudicator failed to make sufficient enquiry before finalizing the Board’s decision; and

 (6) that the adjudicator concluded that the Applicant did not face a genuine and substantial risk of being subjected to BOR 3 ill-treatment without advising the Applicant to obtain medical reports and/or evidence from Pakistan authorities when deciding seriousness of the injuries suffered by him.  

16.  These are however 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 fail to take into account relevant COI, or how did the adjudicator fail to make sufficient enquiry, or what relevancy was medical report to his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, 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 findings of the Director or the Board.

17.  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.

18.  Furthermore, the fact 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.

19.  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.

20.  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