LATIF MASOOD v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 280/2018

[2019] HKCFI 80

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 280 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 34-year-old national of Pakistan who entered Hong Kong illegally on 22 January 2014 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his former business partner over a business dispute.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Gujranwala, Punjab, Pakistan.  After leaving school he operated his own construction business, and in 2005 he and his brother formed a partnership in construction business with his good friend AD from their high school, with the applicant and his brother contributing 3.25 million Pakistan Rupees and AD and his brother AM also contributing the same amount towards their company’s capital under a written agreement signed by them but kept by AD.

3.  As their business were doing good, in 2006 AM suggested to AD that they should take over the company for themselves by bringing an end to their partnership with the applicant, and when they raised their proposal, the applicant and his brother insisted that they would only agree if they were being paid back in full of their contribution of 3.25 million Rupees, to which AD disagreed which led to a quarrel between them during which AD and his brother uttered abuses to the applicant, and a fight broke out when the applicant was struck in his head while his brother was stabbed in the arm.  Eventually police intervened and took all of them back to the police station when they were later released after the police treated the fight as a private dispute between them without taking any further action.

4.  Thereafter the parties made several attempts with the assistance of their family members and friends to try to resolve their disputes, but all of them ended in fierce arguments and fights which led to bleedings and injuries, and the conflicts escalated in mid-2007 when AD and his followers approached the applicant’s father on the street to demand him to tell the applicant to drop his claim for his share of the company’s capital, and when his father refused they proceeded to assault him by hitting him with the butts of a pistol which broke his glasses and bleeding in his face and his left shoulder to dislocate.

5.  Thereafter as the police continued to be unhelpful and as AD and his people continued to harass and intimidate the applicant and his family with death threats, his father became concerned as AD was an influential man in the village with political connections as a member of the Pakistan Peoples Party (“PPP”), he therefore advised the applicant and his brother to leave Pakistan for their own safety, which they did with the applicant departing on 2 January 2014 for China, and from there he sneaked into Hong Kong and later lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 2 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 29 January 2016 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 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and found his account of his business disputes with AD which led to their serious conflicts unreliable in the absence of any evidence in support of his bare assertion of the centerpiece of his claim, that it was implausible and unreasonable that he was unable to produce any documentary evidence of the business such as the partnership agreement or his contribution of the capital or anything about the company or that he had never taken any legal action in Pakistan to resolve the disputes, that even if his claim were true now that AD had taken over the business and company after the departure of the applicant and his brother from Pakistan that there is no reason for AD to continue to have any adverse interest in the applicant, that in any event it was a private and personal business dispute that in the absence of 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 show 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 other areas away from his home district such as Karachi where it would be difficult if not impossible for AD and his followers to locate him.

8.  By a Notice of Further Decision dated 16 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional 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”).

9.  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 11 February 2016, and for which he attended an oral hearing on 10 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 29 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found even on the applicant’s own case that as AD has since taken over the business and company that the applicant is no longer at risk of any harm from AD unless he chooses to go back to Pakistan to demand from AD for his money, in which case he should do so through the court, and therefore there is in the circumstances simply no likelihood that if he is refouled to Pakistan that AD will go after him unless he first acts, and that in the unlikely event that any risk of harm from AD somehow still persists, it would not be unreasonable or unduly harsh for the applicant to relocate within Pakistan such as Karachi where he can live and work to support himself in the absence of any evidence to suggest that AD has the influence or resources to enable him to locate the applicant anywhere in Pakistan. 

11.  On 22 February 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 the wrong decisions in assessing his non-refoulement claim;

(2)  that their decisions were unreasonable and unfair under the Wednesbury test;

(3)  that their decisions failed to take into account that right to life must be protected from extra-judicial killings which he may face if deported to Pakistan; and

(4)  that the adjudicator failed to give him sufficient time and chance to arrange relevant evidence for his non-refoulement claim and his appeal.  

12.  These are however mostly 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 were their decisions unfair or unreasonable, or how were extra-judicial killings relevant to his case.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in the absence of such particulars I am unable to see any basis or merit in any of his complaints.

13.  His complaint that he was not being given sufficient time or opportunity to submit relevant evidence for his claim or appeal is also entirely without merits, as he never raised any such issue nor requested for time during his oral hearing before the Board.  Even now in his application and his oral hearing before me that he did not submit any further or additional materials or representation for his claim. 

14.  The fact is that the applicant’s claim was rejected by both the Director and the Board essentially on his credibility as to the centerpiece of his claim based on the evidence before them of which they were entitled to do so, as has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm in a non-refoulement claim 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 Re Litoun Mounsy [2018] HKCA 537.

15.  Further, as it has also been established by the Director and the Board in their respective decision that even if the risk of harm in the applicant’s claim were true, that it 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.

16.  In the premises and having proceeded to consider 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.

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