ABBASI AHTISHAM v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE APPOINTED TO DETERMINE THE APPLICANT’S PETITION AND ANOTHER

HCAL 317/2018

[2019] HKCFI 437

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 317 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;

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 1 December 2015 and was arrested by police on 21 December 2015.  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 certain fellow villagers over a land dispute. He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Sui Cheemian, Gujar, Rawalpindi, Punjab, Pakistan where his parents and siblings still live.  After leaving school he worked as a driver and farmed in his family’s farmland in the village which was subsequently transferred by his father to him a few years ago.

3.  One day in March 2015 when he and his father were working in his farmland, several villagers led by WS and his cousin KS who were also members of the political party Pakistan Muslim League (N) (“PML(N)”) and owned land in the village approached them and demanded that the applicant transferred his land to them, and when he refused, they started to assault him and his father with sticks and punches, and before they left they threatened to kill him if he still refused to let them have the land.

4.  After the assault the applicant and his father were taken to the hospital for treatments, and on the following day the applicant made a report to the police who agreed to conduct an investigation but no arrests were subsequently made, while WS and his men continued to make threatening phone calls to the applicant over the farmland.

5.  One day in July 2015 while the applicant and his father and brother were working on his land, WS and his men again came to demand for his land, and when the applicant refused they again assaulted him and his father and brother with punches and kicks, and before they left WS again threatened to kill him if he still refused his demand.

6.  After the applicant was discharged from hospital for treatment of his arm fracture caused by the assault, he went to the police station intending to make another report, but WS and his men were already there making a false claim against him for starting the fight with them, and as a result he was detained by the police for one week before he was able to make bail.

7.  After his release the applicant took shelter at his friend’s place in Raja Bazar for several weeks without any further incidents, but as he felt it was no longer safe for him to remain in Pakistan, he therefore left for Islamabad and with the assistance of an agent there he departed on 15 August 2015 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he lodged his non-refoulement claim for which he completed a Non-refoulement Claim Form on 7 October 2017 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

8.  By a Notice of Decision dated 31 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”).

9.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from WS and his men, that they only intended to put pressure on him to transfer his land to them, that it was a private personal dispute 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 207 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 young man with work experience to move to other part of Pakistan away from his home district in large cities such as Karachi or Lahore where it would be difficult if not impossible for WS or his people to locate him.

10.  On 13 November 2017 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision of the Director, and for which he attended an oral hearing on 30 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 22 February 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board found that the applicant failed to adduce any credible evidence to show that the land had been transferred by his father to him and registered under his name, that his evidence of such claim as not credible, that under the law and the land administration, registration and record systems that it would have been implausible for WS or KS to forcibly occupy or build on the applicant’s farmland as claimed, that most if not all of his core assertions to his claim had been fabricated or wholly unreliable, and concluded that his claim failed on all applicable grounds.  

12.  On 28 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 the wrong decision in assessing his non-refoulement claim;

(2)  that their decisions were not fair or reasonable as required by the Wednesbury test;

(3)  that they failed to take into consideration 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 and opportunity to arrange relevant evidence for his non-refoulement claim and appeal.  

13.  These are however just some 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 decision, or in what way were their decisions unfair or unreasonable, or what relevancy were extra-judicial killings to his claim, or how did the adjudicator fail to give him sufficient time or opportunity to produce relevant evidence for his claim or appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

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 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 Re Litoun Mounsy [2018] HKCA 537.

15.  In the applicant’s case, as held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board has been pursued and that the Director’s decision has been superseded by the Board’s decision, and it is therefore not open to the applicant to challenge the Director’s decision by way of judicial review.

16.  As for the Board’s decision, the applicant’s claim was rejected by the Board based on reliable COI and adverse finding on his credibility for the careful and detailed analysis and reasoning set out in paragraphs 52 – 71 of its decision, and with rigorous examination and anxious scrutiny I do not find any error of law or procedural unfairness or irrationality in that decision, nor any failure on the part of the adjudicator to apply high standards of fairness in her consideration and assessment of the applicant’s claim.

17.  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