IQBAL HASSAN SAFDAR v. DIRECTOR OF IMMIGRATION

HCAL 98/2017
[2018] HKCFI 175

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 98 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 national of Pakistan who entered Hong Kong illegally and was arrested by police on 31 March 2012.  He was referred to the Immigration Department on 1 April 2012 for investigation and on 2 April 2012 he lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”) with the Department on the ground that he would be harmed or killed by Shia Muslims back home in Pakistan.  He was then released on recognizance upon condition that he reported to the Department every 6 weeks but which he failed to do and had absconded since 12 June 2012.  His torture claim was rejected by the Director on 26 July 2012.

2.  On 26 March 2014 the applicant was arrested by the police and on 28 March 2014 he was referred back to the Immigration Department.  On 31 March 2014 he applied for non-refoulement protection which was rejected by the Director on 2 March 2016 on all applicable grounds with the exception of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 2 risk”).  By a supplemental decision of 29 December 2016, the Director also assessed BOR 2 risk in respect of the applicant’s claim and again rejected it. 

3.  On 14 March 2016 the applicant lodged his appeal to the Torture Claims Appeal Board (“the Board”) against those decisions of the Director when an oral hearing was conducted by the Board on 9 February 2017 attended by the applicant in person during which he gave evidence and answered questions.  On 20 February 2017 the Board dismissed his appeal and confirmed the Director’s decisions.

4.  On 24 March 2017 the applicant filed his application and supporting affirmation for leave to apply for judicial review of the decisions of both the Director and the Board, which is the matter now before me, but before considering the application, it would be necessary to first summarize the relevant background of the applicant’s claim based on the details set out in those decisions.

5.  The applicant was born on 18 August 1986 in Sialkot, Punjab, Pakistan.  He is a Sunni Muslim by religion and received 10 years of formal education before working for several years as a factory inspection controller.  His parents and two siblings still live in Pakistan.

6.  While there may have been some minor run ins with the local Shia Muslims, the real difficulty the applicant had with them was when the Shia Muslims became unhappy about his family constructing a mosque started in 2008 after his grandfather was able to secure financial the resources for the project.

7.  The first serious dispute occurred in early 2009 when the applicant with some of his cousins and friends had a fight with a group of Shia men armed with wooden sticks and firearm and as a result the applicant suffered injuries to his face and head while one of his friends lost his leg. Eventually the police intervened and the applicant escaped to hide in a friend’s home in Sumbiral where he heard that his cousins and friends were all arrested and detained by the police for seven days during which they were beaten with wooden sticks.

8.  Later in 2009 the applicant and his relatives attended a meeting with the Shia men to try to resolve their dispute but when it failed the Shia men called the police to arrest the applicant for being involved in the earlier fight.  As a result the applicant together with some of his cousins were detained by the police during which he was beaten with sticks and belts and was released only four days later after his family had paid a bribe to the police.

9.  After that incident the applicant intended to leave Pakistan for Malaysia, and obtained a passport in early 2010, but when his grandfather was dying in July 2010 and told him to continue with the project, he decided to defer his plan and remained in Pakistan working on the construction of the mosque.

10.  One day in late 2010 while the applicant was working at the construction site, some Shia men came and after some conversation they turned violent and attacked him and his cousins causing injuries to his forehead and bruises all over his body until he finally escaped to hide in a friend’s place for several months before returning home to work on the mosque.

11.  Things however turned ugly again in mid-2011 when the Shia men caused damages to materials in the construction site and stole some of the machines, and when he with some of his family members asked them to return those machines, a fight broke out between them during which he was attacked with sticks and pipes that his left arm was broken.  Eventually he was able to escape and hid in various places, and it was then when he took his friend’s advice that his only option was to seek protection outside Pakistan and decided to come to Hong Kong.

12.  On 24 September 2011 he was arranged by his agent to fly to China where he stayed in Shenzhen for 6 months before entering Hong Kong illegally on 31 March 2012 when he was arrested by the police and subsequently lodged his claim for non-refoulement protection with the Immigration Department.

13.  As noted above the applicant’s claim was assessed by the Director on all applicable grounds including torture risk, BOR 3 risk, and persecution risk, and later also on BOR 2 risk, on the following structure:

     (a) how likely it is that his feared harm and treatment would materialize;

     (b) consideration of the claimed BOR 2 and BOR 3 risks; and

     (c) consideration of whether the claim calls for persecution non-refoulement.

14.  In his decision the Director noted that notwithstanding the applicant had earlier indicated his intention to submit further documents in support of his claim including the First Information Report (“FIR”) to the police of the stolen machines, photographs of the constructions of the mosque, and certain complaint letters presumably to the police about those incidents, for which he asked and was given two months to submit but which he apparently never did, and which demonstrates a mental awareness on his part of the importance for his claim to be corroborated by whatever evidence or information that he may be able to obtain, which is in my view relevant, as will be apparent below, in my consideration of one of the grounds raised by the applicant in his leave application for judicial review now before me.

15.  The Director having reminded himself that when assessing the applicant’s credibility, any inconsistencies found may not be fatal to his claim as long as the centerpiece of the claim stands, and accepting that there had been a lapse of time since those incidents had taken place, proceeded to find that the applicant had failed to provide coherent and consistent details on the material and significant aspects of his reports made to the police regarding the disputes with the Shia men which cast doubts on the truthfulness of the events that he claimed to have happened at the material time and hence cannot be relied on.

16.  Nevertheless the Director proceeded to assess the applicant’s claim on the assumptions that what he said about those incidents were true, and found that that the low intensity and frequency of the alleged ill-treatment from the group of Shia men in the past was indicative of small future risk of harm upon his return to Pakistan, and that his assertion of being killed by them as too far-fetched.

17.  As regard the applicant’s fear of police’s persecution again the Director found no evidence in support of that claim and assessed it as mere speculation, and while agreeing with him about the influence and power of Shia Muslims in the government of Pakistan, there is also objective COI reports showing that reform have been on-going in Pakistan giving objective indication that the government has taken steps to monitor the police and improve their effectiveness, and in the absence of any evidence that the State had been involved in the dispute over the construction of the mosque, it was therefore not accepted that reasonable State protection would not be available to the applicant upon his return to Pakistan.

18.  It was also the Director’s finding based on the applicant’s own evidence that all the threats and harm carried out against him by the Shia men were locally confined to his home district, and with Pakistan having a vast territory exceeding 770,000 square kilometers with a population of almost 200 million, it was clear that internal relocation is available and reasonable in the circumstances of the applicant in other districts or cities away from his home town to live and work safely given his age and ability.

19.  Accordingly it was the Director’s fair assessment not to accept that the applicant faces any genuine or substantial risk of being subjected to any harm or ill-treatment under any of the mentioned risks, and I am unable to find any error or unfairness in his rejection of the applicant’s claim.                             

20.  Similarly in determining the applicant’s appeal against the Director’s decisions, the Board applied the same legal principles and considered the claim under all the applicable grounds including torture risk, BOR 2 and 3 risks, and persecution risk; and after considering all the facts and evidence including those given by the applicant at the oral hearing on 9 February 2017, the Board also found that he is not a witness of truth and that he has fabricated claims in relation to his involvement with the building of the mosque, the fights that he was involved in and his arrest and other dealings with the police, for which the Board explained in its decision as follows:

“ 35. While the Board is mindful of the fact that it is quite possible for the centerpiece of an Appellant’s claim to stand alone despite the presence of some exaggeration, uncertainty or even untruthfulness, this was not the case with the Appellant’s evidence. The difficulty with the Appellant’s evidence is that when questioned both at interview and by the Board, it changed fundamentally in relation to the past harm that he had received both in terms of fights he had been involved in and interactions with the police …”

21.  The Board then outlined its concerns over the inconsistencies in the applicant’s evidence in its decision and there were indeed many instances in which details were given and proper analysis made, and upon which I agree that the Board was certainly entitled to make such findings in particularly with the benefit of hearing the applicant in evidence.

22.  Notwithstanding that the Board did go on to properly consider whether or not the applicant would have any difficulties with the police upon his return to Pakistan including asking him those many relevant questions detailed in its decision and taking a very generous reading of his interview responses to the Director before again correctly finding his evidence on those events with the police as unacceptable.

23.  The Board has also gone on to consider whether or not the prevailing conditions in the applicant’s home region would warrant providing him with protection, and found that the objective COI reports before it as well as the applicant’s own evidence indicate that the risk to him, even if the Board accepted all of his claims as to the fights incidents, to be minimum at best, and that all the information before it does not indicate any real risk of harm to the applicant on the basis of his profile as a Sunni man in his area, and again correctly concluded that there is no real risk of any proscribed harm should the applicant return to Pakistan in the foreseeable future.               

24.  In his Form 86 filed on 24 March 2017 for leave to apply for judicial review of the decisions of both the Director and the Board, the applicant attached four pages of grounds which he intended to rely on which can be summarized essentially as follows:

(1) that he did not receive the letter from the Immigration Department inviting him to submit additional facts relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk and was therefore deprived of the opportunity to do so when his claim was rejected by the Director and the Board;

(2) that the Director erred in law in failing to consider and assess whether state protection existed for risk under Article 3 of the Convention; and

(3) that there was unfair procedure when decision makers failed to carry out sufficient research and inquiry into COI conditions in Pakistan before deciding that internal relocation was available to the applicant and reasonable in his circumstances.     

25.  For the first ground in respect of the letter which the applicant complained of not receiving from the Immigration Department, which is the one dated 8 December 2016 in which the applicant was invited to submit additional facts relevant to his case to the Immigration Department on or before 22 December 2016, and it was one week later by a Notice of Further Decision dated 29 December 2016 when the Director stated that no additional materials or facts had been received from the applicant but nevertheless further considerations were made to his claim including BOR 2 risk before concluding that he had failed to establish any personal or real risk of any of his BOR 2 rights upon his return to Pakistan.

26.  If indeed it is true that the applicant never received that letter, and high standard of fairness requires me to accept that bare assertion and to assume that he did have additional facts or materials to submit that would assist his case and which therefore the Director did not consider, facts which are as serious and important as those referred to his four-page statement such as the burning of his house and the torture of his mother and sister which led to the death of the latter, all of which the applicant claimed to have occurred the year before and therefore in 2016, and bearing in mind of his clear awareness of the importance of producing whatever materials and information that would assist his case referred to above, it begs the obvious questions of why did he not disclose them in his appeal to the Board or more significantly during the oral hearing on 9 February 2017 before the Board if indeed they are true, and that why has he not produced any evidence such as, for instance, photographs of his burnt home, medical report of his mother’s injuries or the death certificate of his sister, to corroborate what appears to me the barest of assertions without he was any details, when he had had ample time and opportunity and with his family’s assistance to do so, bearing in mind that he was also represented and assisted by the Duty Lawyers Scheme during the process before the Director, and as pointed out by the Court of Appeal in TK v Michael Jenkins CACV 286/2011, 21 November 2012, that within reasonable bounds the torture claimant’s side is expected to conduct its own investigation and obtain information and materials that it requires to prove its case.  Having failed to do so in the circumstances I am not satisfied that this complaint of the applicant is justified.    

27.  As for the two remaining challenges based on error in law and unfairness in procedure, notwithstanding with rigorous examination and anxious scrutiny I am unable to find anywhere in those four pages of document in which the applicant has properly identified any error on the part of the Director or the Board in rejecting his claim, or any unfairness in the procedure in either process as I have examined and outlined above.

28.  In both cases the Director and the Board did properly consider and analyze all the COI reports and materials before them before coming to the conclusion that internal relocation is available and reasonable in the circumstances of the applicant, and in the absence of any evidence shown by him to the contrary, I do not find any ground that shows any error in law or procedural unfairness on the part of the Director or the Board, nor any failure to apply a high standard of fairness in their assessment of the applicant’s claim. 

29.  In the premises and for the reasons given, I am not satisfied that the applicant’s intended application for judicial review is reasonably arguable, and accordingly I refuse leave for judicial review.

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