RIAZ MUHAMMAD TEHSEEN v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 256/2018

[2018] HKCFI 2455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 256 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 the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 25-year-old national of Pakistan who entered Hong Kong illegally on 25 October 2015.  After surrendering to the Immigration Department on 16 December 2015, he subsequently lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by some Shia Muslims over some religious dispute and/or by the police over certain false charge brought against him.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born to a Sunni Muslim family in Johar Town, Lahore, Punjab, Pakistan where the majority of the population in his home town were Shia Muslims and there were frequent conflicts between the two groups.

3.  One day in September 2015 the applicant and several of his Sunni friends had some dispute with some Shia Muslims in the town mosque which turned into a fight when one of his friends was killed but the applicant managed to escape with only some minor injuries.

4.  Afterwards the applicant reported the matter to the police but was instead detained by the police for investigation as to that incident before he was released two days later.  Several days later when he heard that the police were again looking for him over the murder of a Shia Muslim, he suspected that those Shia Muslims must have made a false charge against him and therefore fled to Islamabad where he took shelter at a friend’s place.

5.  However, when he was spotted by the police in the local bazaar in Islamabad who then fired several shots at him but missed and he managed to flee and hid in his friend’s place, and as he felt it was no longer safe to remain in Pakistan, he therefore went to Lahore where he boarded a plane on 22 October 2015 for China, and from there he sneaked into Hong Kong and subsequently lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 11 October 2017 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

6.  By a Notice of Decision dated 26 October 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 of all the relevant circumstances of the applicant’s claim and assessed the risk of harm from those Shia Muslims and/or the police upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that he had been specifically targeted by the Shia Muslims in his home district or that he was being pursued by the police since he was able to leave Pakistan without any difficulty, 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 204 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 young man to move to other areas away from his home district in large cities such as Karachi or Multan where it would be difficult if not impossible for his perceived enemies to locate him.

8.  On 8 November 2017 the applicant lodged his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 23 January 2018 before the Board with a solicitor during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 8 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found no credible evidence from the applicant to show why the Shia Muslims in his home area would want to harm or kill him, that his assertions of persecution by the Shia Muslims and/or the Pakistani authorities to be highly improbable and fanciful which were delivered without conviction and given to invention without objective support and offended common sense, that it was not accepted that he was a credible or reliable witness, and concluded that he has failed to show that his fear is well-founded or that there is a real chance that his claimed fear will materialize under any of the applicable grounds.  

10.  On 15 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 their decisions wrongly in assessing his non-refoulement claim;

(2)  that their decisions were not reasonable or fair 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 or opportunity to arrange relevant evidence to support his non-refoulement claim or for his appeal.

11.  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 how were their decisions unreasonable or unfair under the Wednesbury test, or in what way were extra-judicial killings relevant to his case.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

12.  As for his complaint of not being given sufficient time or opportunity to arrange for evidence to support his claim or his appeal, again he failed to provide any particulars or elaboration as to how that was so, of which he never raised any issue nor request for further time to do so during his appeal process or at his oral hearing before the adjudicator. Even now in his present application he did not provide any additional evidence or further representation, nor did he attend the oral hearing listed for his application without any explanation despite notice of which had been sent to his last known address provided by him to the Immigration Department, and for which I did not find necessary to schedule a further hearing for his application.  In the premises I do not find any merit in this complaint of his either.

13.  The fact is that his claim was rejected by the Board essentially on his credibility based on the materials available to it and with the benefit of hearing him in evidence at the hearing, and for the detailed analysis and reasoning set out in paragraphs 26 – 98 of its decision in which the applicant as noted above failed to properly identify any legal errors or procedural unfairness or irrationality.

14.  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 being 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.  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.

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