AKHTAR HASSAN v. DIRECTOR OF IMMIGRATION

HCAL 107/2017

[2018] HKCFI 2175

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 107 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 32-year-old national of Pakistan who entered Hong Kong illegallyon 26 October 2015 and was arrested by police on the same date.  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 supporters of rival political party the Pakistan Muslim League-N (“PML-N”).  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Chakwal, Pakistan.  After leaving school he operated a business selling and repairing electrical appliances, and in 2013 he became a supporter of the political party Muttahida Qaumi Movement (“MQM”) when he would frequently come into conflicts with supporters of PML-N then the ruling party.

3.  One day in March or April of 2015 when the applicant with other MQM supporters were putting up posters in the streets for their party, they were attacked by PML-N supporters during which the applicant was struck on the head by wooden sticks that caused bleeding and was threatened that he and his fellow supporters would be killed if they did not quit their party.

4.  After receiving treatment to his head injury in a hospital, the applicant and his fellow MQM supporters reported the assault to the police which then issued a First Information Report (“FIR”) to them but when it appeared that no follow-up action had been taken againstthe PML-N supporters, the applicant became concerned for his own safety that he fled fromhis hometown to take shelter at his relative’s place in Karachi, and then from Lahore he left Pakistan on 22 October 2015 for China where he subsequently sneaked into Hong Kong and raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 19 July 2016 with legal representation from the Duty Lawyer Service.  

5.  By a Notice of Decision dated 31 August 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 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”).

6.  In his decision the Director found the low intensity and frequency of past ill‑treatment from the PML-N supporters indicative of a low future risk of harm upon the applicant in his return to Pakistan, that he was not specifically targeted by the PML-N supporters, that in the circumstances state and police protection would be available to him if resorted to, and that reliable Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 199 million people spread across a vast territory of more than 796,000 square kilometer that it would not be unduly harsh for the applicant as an able-bodied adult with work experiences to move to other areas away from his home district such as Karachi. 

7.  By a Notice of Further Decision dated 23 March 2017 the Director again rejected the applicant’s claim after receiving no response from him to an earlier invitation for him to submit additional facts 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”).

8.  On 31 March 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Director’s decisions, but neither in it nor in his supporting affirmation of the same date did he put forward any ground for his intended challenge other than just repeating his claim of fear of harms to him in Pakistan as follows:

“ … there is still serious danger for my life in Pakistan that is why I can’t go back to Pakistan. I have to show some proof in the court regarding my case and I have already requested to my family in Pakistan to send me those proof. Therefore I request the honorable court to review the decisions because there is still threat of my life and my enemies are powerful people. If I am sent to Pakistan I would be killed by my enemies …” [sic]

9.  It is not clear whether the applicant did subsequently submit what he claimed in his affirmation additional proof from his family in Pakistan, although there are several pages of documents in the court file probably in the Urdu language but without any English translation except for a certificate issued by the Government of Punjab Health Department referring to a head injury of the applicant being treated on 7 March 2015.  Even assuming these were indeed the new or additional proof subsequently obtained by the applicant from his family, for those without proper translation I am unable to assign any evidential value, whilst the medical certificate of the applicant’s head injury would not in my judgment advance his case any further, as it is clear from the Director’s decision that it was accepted that the applicant was attacked and suffered a head injury in that clash in March 2015 between the supporters of MQM and PML-N in Pakistan.

10.  The fact is that it has been established by the Director in his decision based on the facts of the applicant’s own case that the risk of harm from the PML-N supporters is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to other part of Pakistan, the Director was perfectly entitled to conclude that there is no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

11.  Furthermore, in the absence of any response from the applicant to the invitation to submit additional facts relevant to his claim under BOR 2 risk, the Director was entitled to deal with such claim of his on the facts and presentation made earlier by his legal representation on his behalf, and upon considering both decisions of the Director 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 his part to apply high standards of fairness in his consideration and assessment of the applicant’s claim.

12.  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