FAISAL SHAHZAD v. DIRECTOR OF IMMIGRATION

HCAL 414/2018

[2020] HKCFI 794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 414 of 2018

     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 27-year-old national of Pakistan who entered Hong Kong illegally on 3 January 2016, and surrendered to the Immigration Department on the following day when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed in revenge by the family of his friend whom they thought was murdered by him.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Nakodar, District Dina, Jhelum, Punjab,Pakistan. After leaving school he assisted his father in farming before going over to Dubai to work as a baker until 2015 when he returned to Pakistan.

3.  One day in April 2015 one of his close friends Khawar came to visit him at his home until late in the evening when he left to return to his home in the same village.  However,on the following morning his body was discovered and that he was suspected to have been shot to death.

4.  As a result the police came to the Applicant’s home to take him back to the station for interrogation over Khawar’s death where he was detained for more than a week.  Eventually he was released without charge due to lack of evidence, much to the objection of the Khawar family as they suspected that it was the Applicant who had murdered Khawar,and had sworn to take revenge against him.

5.  Fearing for his life the Applicant therefore took shelter in his friend’s place in a neighbouring village, and then moved to another friend’s place in Karachi.  One day in August 2015 while he was on his way to a local bazar, he was approached by several men with a photo of him and asked him whether he was the person in the photo, and when the Applicant confirmed that he was, the men did not say anything but proceeded to attack him with wooden sticks that he eventually fainted on the street, and was subsequently taken to the hospital where he remained for 12 days for treatments of his injuries sustained in the attack.  

6.  Upon his discharge from hospital, the Applicant suspected that those men who attacked him were sent by the Khawar family, and realizing that it was no longer safe to remain in Pakistan, he therefore departed on 15 October 2015 for China, and from there he sneaked into Hong Kong Hong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 28 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 18 September 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under PartVIIC 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 Article2 (“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”).

8.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Khawar family to the Applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it was a private dispute between the Applicant and the Khawar family without any 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 (“COI”) 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 770,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Pakistan away from his home district in large cities such as Lahore where it would be difficult if not impossible for the Khawar family to locate him.

9.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 21 February 2018 before the Board during which he however declined to give evidence or to answer any question from the adjudicator for the Board despite being advised and invited to do so as the credibility of his claim was at issue.  On 9 March 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found in the absence of any oral evidence from the Applicant or any answer to various questions specifically raised by the adjudicator on the core matters of his claim during his oral hearing that it was unable to give weight to the information provided by him to the Director, and given the many questions and doubts that the Board had over his claim as set out in paragraph 22 of the decision which the Applicant declined or failed to answer or clarify at the hearing, the Board concluded that the Applicant failed to establish his claim for non-refoulement protection on all the applicable grounds.  

11.  On 13 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward only one broad ground that the decision is unfair and unreasonable without any particulars or specifics or elaborations as to how it is so, nor did he identify any error of law or procedural unfairness in his process before the Board or in the Board’s decision.  As such I do not find this ground reasonably arguable for his intended challenge.

12.  As has been repeatedly emphasized by the Court of Appeal, evaluation of 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 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

13.  In the present case, the Applicant refused to give evidence or to answer questions from the adjudicator to clarify or elaborate his evidence in the documents concerning the core of his claim notwithstanding the invitation of the adjudicator, and there was no objectiveevidence to support his material assertions.  Based on his evaluation of the available evidence,the adjudicator rejected the Applicant’s claim on the basis that he failed to substantiate hisclaim, of which as noted above the adjudicator was entitled to do so, and in the absence ofany error of law or procedural unfairness being clearly and properly identified by the Applicant,I do not find any reasonably arguable basis to challenge the finding of the Board.

14.  Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

15.  In the premises and having considered 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