SAJID IQBAL v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 776/2018

[2020] HKCFI 169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 776 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 42-year-old national of Pakistan who entered Hong Kong illegally in May 2007 and was arrested by police on 29 May 2007 for possession of a forgedidentity card and illegally remaining in Hong Kong and was subsequently sentenced by the court to prison for eight months, during which he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the terrorist group Taliban for being a social worker for a human rights organization.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Kher Abad, Mohallah, Loharaan, Nowshera District, Pakistan.  After leaving school, he worked as an auto-parts mechanic in his home village, and worked as a social worker for the Pakistan International Human Rights Organization (“PIHRO”) on voluntary basis assisting people of different religions in his local area.

3.  In late 2006 he attended a rally organized by Shia Muslims which was broadcasted on television.  Shortly thereafter several unknown men who dressed like Taliban approachedhim on the street and accused him of having converted to Shia Muslim and should be killed,they then stabbed him with a knife in his stomach before escaping from the scene.  As a result the Applicant was taken by some passers-by to a clinic for medical treatments.

4.  After the attack the Applicant fled to various places in Lahore, Karachi and Rawalpindi to avoid further attacks, but one day in March 2007 while he was in his car to Peshawar, he was stopped by another vehicle when four men got out and pulled him from his car and started to punch and kick him until some passers-by gathered that they then fled from the scene.

5.  After receiving some medical treatments, the Applicant reported the attack to the police but no follow-up action appeared to have been taken, and as he felt it was no longer safe to remain in Pakistan, and so on 4 May 2007 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 6 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 21 December 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”).

7.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by the Taliban upon his return to Pakistan due to serious doubt over the credibility of his claim and the low intensity and frequency of past ill-treatment from them, that if he was indeed attacked on those two occasions in Pakistan that there was still no reliable evidence that it was by the Taliban, that in any event that it is doubtful that they would still have any adverse interest in him upon his return to Pakistan after all these years, 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 (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 204 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 Muzaffarabad or Lahore where it would be difficult if not impossible for the Taliban to locate him.

8.  On 2 January 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended two oral hearings on 14 February 2018 and 12 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 29 March2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found the Applicant’s evidence as to his claims of being a voluntary social worker for PIHRO or of the threats and attacks from the Taliban vague,inconsistent and implausible that he was not regarded as a reliable witness, and rejected his claims of being a social worker or a human rights worker, or that he had worked for PIHRO,or that he had ever been attacked or threatened by the Taliban, or that he left Pakistan due to fear of them, and concluded that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 3 May 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 appreciate or give proper importance to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting the Applicant’s non-refoulement claim;

 (2)  that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies as a direct result of police misconduct;

 (3)  that the Director failed to take into consideration that the state should be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence as evidenced by the Applicant’s brother being killed by Taliban in Pakistan which caused the Applicant to fear that the same fate would occur to him if returned to Pakistan;

 (4)  that the Director had failed to consider or give sufficient weight to those COI whichsupported the Applicant’s case that the police in Pakistan would not be able to protect;

 (5)  that the Director only relied on those COI which suited his pre-conceived conclusion which was a clear case of unfair attitude towards the Applicant;

 (6)  that the Director failed to consider that corruption and incompetency of the administration in Pakistan is still a very serious problem as supported by various human rights organization reports which stated testament to the Applicant’sassertions; and

 (7)  that the Director failed to attain the high standard of fairness required by the Wednesbury test in his decision which should be rendered unreasonable in the scope of public law.  

11.  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 Board had erred in their decisions,or how was state acquiescence relevant to his claim in the absence of any state or official involvement and when Taliban was clearly outlawed by the Pakistani government as a terrorist group, or in what way did the Director or the Board fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or how did the Director or the Board fail to apply high standards of fairness in assessing his claim, or in what way were their decisions Wednesbury unreasonable.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

12.  As has been repeatedly emphasized by the Court of Appeal, the 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.

13.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 33 – 51 of its decision with the benefit of hearing him in oral evidence and answers to questions raised of his claim by the adjudicator during two hearings of his appeal,and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant with sufficientparticularity,I do not find any reasonably arguable basis to challenge the findings of the Board.

14.  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 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.

15.  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.

16.  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