MUHAMMAD USMAN v. DIRECTOR OF IMMIGRATION

HCAL 482/2017

[2018] HKCFI 793

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 482 of 2017

 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 46-year-old Pakistani man who last entered Hong Kong illegally on 20 June 2007 and was arrested by the police on 23 January 2008.  After he was referred to the Immigration Department for investigation he raised his torture claim on 11 February 2008 that he would be harmed or killed by an Islamist extremist organization called Lashkar-e-Taiba (“LeT”) if he was to be returned to Pakistan.  He was subsequently released on recognizance pending the consideration of his claim.

2.  The applicant was born and raised in Lahore, Punjab, Pakistan.  After receiving a few years of education, he started helping his father in his leather shop and later ran his own video shop in Lahore.  In about 1992 the Islamic group LeT started distributing food to the poor in his home district, and the applicant took it as a charitable organization and soon became involved as a volunteer helping out in their distribution of food whenever the LeT people came to his hometown.

3.  One day in 1994 or 1995 when the LeT people again came to his home town with trucks of bags of food for distribution, the applicant while helping to off-load the bags from the truck, he accidentally dropped one of them onto the ground and noticed an electrical device buried underneath the food inside the bag.  He became suspicious that it was a bomb or weapon of some sort which was part of some illegal or terrorist activities of LeT, and started to stay away from their food distribution or activities thereafter.

4.  Two weeks later when he was approached by some of the LeT members as to whyhe no longer came to assist in their food distribution, the applicant told them what he saw in the bag and that he did not want to be involved in their activities anymore, whereupon they became angry and accused him of not being a good Muslim before they left.

5.  Thereafter whenever the LeT people came to his hometown, they would mock the applicant for not helping them, accused him for not being a good Muslim, and warned him to be careful as bad things would happen to him. About one month later the applicant was arrested by police and brought back to the station where he was told they had received tips that he was involved in several murders in the village and demanded that he confessed.  When he refused he was detained for several weeks during which he was beaten by some men whom he thought were plain clothes policemen, and one of them told him that the police investigation against him would be dropped if he agreed to become a member of LeT.  In order to save himself the applicant eventually agreed and was subsequently released by the police.

6.  When he returned home his father advised him to leave Pakistan for his own safety, and so the applicant left Pakistan and arrived in Hong Kong on 21 August 2000 on the passport of another person and was allowed to remain as a visitor for three days, but he did not depart and instead overstayed until 11 February 2001 when he was arrested by police and was deported back to Pakistan on 25 February 2001 after being convicted and fined for breaching his condition of stay.  

7.  After the applicant returned to his home in Pakistan, he made his living by running a video shop, but when he started to receive phone calls from men claiming to be from LeT and threatening him again for not joining their group, the applicant became concerned about his safety and left Pakistan for Hong Kong again on 3 October 2001 on his own passport.  He was permitted to stay as a visitor until 26 February 2002, but again failed to depart and overstayed until he was arrested on 4 August 2005, for which he was convicted and sentenced to three months’ imprisonment.  Afterwards on 4 November 2005 he was deported back to Pakistan.

8.  Upon returning to Pakistan the applicant settled down by marrying his present wife who then gave birth to a son.  He would also try to avoid the LeT men by hiding from them whenever they came to his village for recruitment, but one day in May 2007 he ran into some of them on the street who recognized him and again threatened him with harm if he still refused to join them, slapping him on the face several times before they left.  The applicant decided to leave Pakistan again for his own safety and those of his family for Mainland China from where he sneaked into Hong Kong on 20 June 2007, and was eventually arrested on 23 January 2008 and raised his torture claim on 11 February 2008 with the Immigration Department.

9.  Upon the commencement of the Unified Screening Mechanism on 3 March 2014 by the Immigration Department, the applicant’s claim was taken to be a non-refoulement claim and assessed under that system, for which he completed his Non-refoulement Claim Form (“NCF”) on 4 September 2014 with legal representation under Duty Lawyer Service and attended several screening interviews when all of which had to be aborted due to his various claims of illness which were subsequently replaced by written submissions and answers to substantive questions raised by the Department and eventually confirmed at the final interview on 6 March 2015 which the applicant attended with legal representation.

10.  By a Notice of Decision dated 24 July 2015 the Director of Immigration (“the Director”) rejected his 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 (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 carefully considered decision and on account of all the relevant circumstances provided by the applicant including the low intensity and frequency of threats or ill-treatments from the LeT people and the long lapse of time since his last encounter with them, the Director for those detailed reasons set out in paragraph 29 to 47 of his decision assessed the level of risk of harm against him from LeT upon his return to Pakistan as low, that in the absence of any reliable evidence to corroborate his claim that the police were involved in the LeT’s threats against him plus the facts that he has been able to freely leave and return to Pakistan without being stopped by the state or arrested by the local police upon his return to his hometown, that objective and reliable Country of Origin Information (“COI”) show that the Pakistan government has in fact outlawed LeT since 2002 and has taken military actions against them and hence state protection would be available to him from them, and internal relocation alternatives are available for the applicant to return to Pakistan with a large population of 196 million people spread over its vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the applicant to live and work safely in other cities such as Karachi away from any threats from LeT.

12.  By a Notice of Further Decision dated 24 October 2016 the Director rejected the applicant’s claim again in the absence of any response from him to an earlier invitation for him to submit any additional information 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, which appeal he filed on 6 August 2015, and for which he attended an oral hearing on 13 January 2017 before the Board during which he gave oral evidence and answered questions put to him by the adjudicator for the Board. On 6 July 2017 his appeal was dismissed by the Board which also confirmed both decisions of the Director.

14.  The Board on the basis of all the information and materials provided by the applicant and upon hearing his evidence at the oral hearing even at the low standard required of him, did not accept the applicant’s evidence to be credible or that he was so targeted by LeT for the detailed analysis and reasons set out in the Board’s decision, and agreed with the Director that on ample objective COI that state protection would be available to the applicant as LeT has been outlawed by the Pakistan government, and that he can safely relocate to other cities in Pakistan without any undue hardship.

15.  Nevertheless on 4 August 2017 the applicant filed his Form 86 for leave to apply for judicial review of the decision of the Director in which he did not provide any grounds for his intended challenge, nor in his supporting affirmation of the same date in which he attached a copy of the letter from the Board notifying him of its decision and merely stated this:

“ I am not satisfied with decision. My life really in danger. I cannot go back to my country. So kindly consider my application to make judicial review. Please see attachment Exb. 1 total 6 pages.”

16.  It is clear to me that the applicant has failed to put forward any grounds of review, and whilst those decisions of the Director and the Board are subject to judicial review, the court does not sit on appeal from those decisions or look at their merits for rejecting or dismissing his claim, as it only plays a supervisory role in the judicial review as stated by the Court of Appeal in TK v Jenkins [2013] 1 HKC 526 at para 40.

17.  Nevertheless, in scrutinizing these decisions it is plain to me that both the Director and the Board considered the applicant’s claim on all applicable grounds and applied all the relevant criteria, took into account properly ample and objective COI relevant to his case including those provided by him and his legal representative, engaged in a joint endeavor with him in the enquiry of his case despite the onus being upon him, and afforded him with ample opportunities to state his case and present his evidence and materials before arriving at their decisions.

18.  Having considered these decisions with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in any of them, or any failure on the part of either the Director or the Adjudicator for the Board to apply high standard of fairness in their assessments of the applicant’s claim, or that any of their decision is Wednesbury unreasonable in the public law sense.

19.  In the premises and for these reasons, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I 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