JUTT MUHAMMAD WAQAS v. DIRECTOR OF IMMIGRATION

HCAL 224/2017

[2018] HKCFI 695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 224 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 26-year old Pakistani man who entered illegally on 18 November 2013 and was arrested by the police on the same day.  On 19 November 2013 he was referred to the Immigration Department for investigation, and on 20 November 2013 he raised a non-refoulement claim on the basis that if he is to return to Pakistan he would beharmed or killed by protection racketeers who claimed to be members of a political partyMuttahida Qaumi Movement (“MQM”).  He was released on recognizance on 27 December 2013.

2.  The applicant was born and raised in Kotri City, Hyderabad Site, Jamshoro District, Sindh Province, Pakistan where his parents and seven siblings still live.  After receiving 12 years of formal education, he had worked in various jobs and in 2013 started running a grocery shop in Karachi owned by his father with his uncle.

3.  His case is that from about mid-2013 he had been threatened by men with guns claimed to be members of MQM who came to the shop demanding for protection money, and when the local police failed to do anything about it and when he and his father were unable to pay them enough to their satisfaction, he was assaulted by them until his father agreed to pay them 30,000 Rupees per month as protection money, which went on for several months until about October 2013 when another group of men came to the shop and assaulted the applicant with similar demands for protection money.  It was then when his father decided that they could not afford to keep the shop and told the applicant to close it down for good, which he did and returned to his home in Hyderabad.

4.  Afterwards the applicant heard that those men had come to the closed shop to cause damage, and decided that for their own safety he and his family in November 2013 moved to Jhelum which is a day’s journey by train from their hometown; and whilst his family had settled down in Jhelum without further trouble with those men and has since sold the shop, the applicant felt it would be safer for him to leave Pakistan and on 11 November 2013 he flew out to China and from there entered Hong Kong where he subsequently lodged his non-refoulement claim.     

5.  By a decision dated 28 December 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then 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 (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, 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 detailed decision the Director considered the fact that the applicant and his family had no further encounters with those men from MQM or any racketeers since the closure of their shop show that his chance of facing any real risk of being harmed by any of these men is no longer real or significant if he is to return to Pakistan, whilst objective Country of Origin Information (“COI”) reports indicate that the Pakistani government has taken practical steps to improve police effectiveness and monitor their conduct with effective avenues to seek justice and protection from the state, and that reasonable internal relocation alternatives are available for the applicant to return to live and work safely in Pakistan with a population in excess of 199 million people spread over a large territory of more than 796,000 square kilometers.     

7.  By a Notice of Further Decision dated 30 March 2017 the Director again rejected the applicant’s claim in the absence of any 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 absolute and non-derogable rights under the Hong Kong Bill of Rights including right to life under Article 2 (“BOR 2 Risk”). 

8.  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 12 January 2016, and for which he attended in person at a hearing before the Board on 19 October 2016 during which he gave evidence and answered questions put to him by the Board.  On 3 April 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In accepting the applicant’s evidence in full, the Board nevertheless agreed with the Director’s assessment that essentially the risk to the applicant from the racketeers has practically died with the closure and subsequent sale of the shop with the following carefully reasoned analysis:

“57. I have no difficulty in accepting the Appellant’s evidence that he was the victim of blackmail by two different groups of persons claiming tobe from MQM, and that he was beaten up, though not particularly severely, by both groups. He also received death threats.

58. I also accept that when the police were informed they failed or refused to act.

59. The upshot of the blackmail was that, once the second group came along, that was the end of the shop. The blackmailers forced it out of business. The owners closed it down and eventually it was sold.

60. The shop owners, and the Appellant who ran it for them, did nothing more than go out of business. The Appellant in particular does not seem to have done anything to provoke the blackmailers apart from that.

61. The shop owners, i.e. the Appellant’s father and uncle, have moved far away from Karachi, the father to Jhelum and the maternal uncle to Hyderabad.

62. The uncle is still in Sindh, which is MQM’s primary territory. He sold the shop, so his interest in it must have been known in the area. The first group of blackmailers had met the father and they at least must have known of his interest in the shop; as would the others, if they all came from MQM.

63. If, as the Appellant seems to suggest, the blackmailers want to take revenge on him for shutting up shop and so depriving them of revenue, the uncle and the father are the men who did that; yet neither of them has had any trouble from MQM, to this day.

64. In any event I cannot see how it would benefit the blackmailers to kill someone, years later, for going out of business. I can see the benefit to them in killing a shopkeeper who will not pay up, as the Appellant says happened to a neighbor. That will produce immediate fear among the othersin the area. However the longer the lapse of time, the less immediate is the object lesson.

65. I conclude that while the Appellant may fear the blackmailers, the chance of their going after him if he is returned to Pakistan is negligible.  There is no real chance of it.”

10.  The Board then rightly proceeded to assess that internal relocation alternatives are available and reasonable for the Appellant should there be such a real chance of risk to him as follows:

“ 81. There is no evidence of a real chance that the blackmailers will harm the Appellant if he is returned to Pakistan. However, if I am wrong and there is such a real chance, it is necessary to consider whether it would be unreasonable or too harsh to expect the Appellant to move elsewhere in the country, to avoid the threat.

82. The Appellant is a young and able-bodied man. He has completed secondary education. He has worked in Pakistan as a clerk, casher and salesman, and in Iraq as a laundry machine operator.

83. His family are living safely in Jhelum in the Punjab.

84. As noted above, there is general sufficiency of state protection in Pakistan. There is no evidence before me to suggest that that does not apply in the Punjab. While the MQM may have influence over the police in Sindh and particularly Karachi there is no evidence that they have such influence in the Punjab or that the Appellant would not have the protection of the authorities there.

85. I cannot see that, if I am wrong and there is still a threat to the Appellant in Karachi it would be unreasonable or too harsh to expect him to move to Jhelum in the first place. That is the most obvious place for him given that his family is there.

86. At the same time, given his education and ability it would not be unreasonable for him to move to any other major centre of population.  Pakistan is a big country ….  Even if the blackmailers were to go after him there are many places where they would not be able to find him.”

11.  The Board therefore concluded that the applicant does not face any real risk of torture, CIDTP or persecution if refouled, and that if he did face it in Karachi, he could reasonably relocate elsewhere in the country to avoid the risk.  In the light of the materials before the Board, I find that it was certainly entitled and justified to reach such a conclusion.

12.  The applicant however on 23 May 2017 filed his Form 86 for leave to apply for judicial review of the Board’s decision, the matter now before me.  His Form 86 did not contain any grounds for seeking relief, but in his three-page supporting affirmation of the same date, he seems to be advancing these grounds summarized as follows:

(a)  lack of opportunity to produce additional information as he did not receive the letter from the Director inviting him to do so regarding BOR 2 risk;

(b)  the Board was selective in its reliance on COI and failed to address the negative aspects and corruption of the police in Pakistan; and

(c)  the Board’s decision was procedurally unfair.

13.  For the first ground, the letter from the Director inviting the applicant to produce additional information regarding BOR 2 risk was the one dated 27 February 2017 referred to in the Director’s Notice of Further Decision of 30 March 2017, and if indeed the applicant never received it, I accept that by the time he learnt about it from the Director’sNotice, he would indeed have lost the opportunity to produce such additional information, if he already had them regarding BOR 2 risk, to the Director or even to the Board as his hearing before it already took place way back on 19 October 2016, and the Board’s decision was delivered on 3 April 2017 which was only four days after the Director’s Further Decision.     

14.  However, by raising the issue now in his supporting affirmation of 23 May 2017 for leave to apply for judicial review, it also seems clear to me that if indeed he has those additional information relevant to BOR 2 risk, or for that matter whatever additional information which may assist his case, he would have produced them or at least refer to them in his said affirmation but which he did not, not even a single word was mentioned as to what they might be, hence it is most doubtful to me that he would have such additional information that would assist his case regarding BOR 2 risk or otherwise.

15.  As for his second ground, in the absence of any particulars or specifics provided by the applicant, it is not clear in what way or manner that the Board has been selective in its use of COI other than the issue over corruption of police in Pakistan, of which the Board did take into account of those listed and considered by the Director in paragraph 52 of its decision, as well as carrying its own research on MQM which indicates that it is primarily based in Sindh Province, and while they are generally accused of operating protection rackets, the Board did also note from the UK Home Office Country Information and Guidance Report that there is “systemic sufficiency of state protection” in Pakistan, as also noted by the Director in his decision.  In any event, it is the Board’s assessment that this is a case which stands or falls on its own facts and does not require any more consideration of COI.  Again on the basis of his evidence and in the light of the materials before the Board, I do not see any merit in this ground of the applicant.

16.  As for the last ground raised by the applicant, it is such a broad and general statement devoid of any specifics or merits, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error in law or procedural unfairness in either of them, nor any failure on their part to apply a high standard of fairness in their assessment of the applicant’s claim.

17.  In the premises and for the reasons given, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I 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