HCAL 1331/2018
[2020] HKCFI 266
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1331 of 2018
BETWEEN
| Farman Naveed | Applicant |
| and | |
| The Director of Immigration | 1st Putative Respondent |
| Betty Kwan, Adjudicator of
Non-refoulement Claims Petition Office | 2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The Applicant is a 31-year-old national of Pakistan who entered Hong Kong illegally on 2 January 2016 and surrendered to the Immigration Department on 11 January 2016 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the family of his girlfriend who were opposed to their relationship. He was subsequently released on recognizance pending the determination of his claim.
2. The Applicant was born and raised in Faisalabad, Punjab, Pakistan. After leaving school he and his family moved to Attock City in Punjab where he worked as a salesman before going to work in Saudi Arabia in 2011.
3. While he was still in secondary school, he met his girlfriend and had been dating her for years, although their relationship was kept a secret from her much more wealthy family of higher caste than the Applicant’s family, and that her father was a member of the major political party Pakistan Muslim League (N) (“PML(N)”) in the Attock constituency.
4. In 2015 when the Applicant returned home from Saudi Arabia, he proposed to his girlfriend’s father to marry his daughter, but his proposal was rejected by her father and her family who insisted instead that he should stop seeing his girlfriend.
5. One day in 2015 when the Applicant was on his way to meet his girlfriend, he ran into two of her brothers who then demanded that he should stop seeing their sister, and when the Applicant refused, they proceeded to punch and kick him until restrained by some passers-by. As a result the Applicant had to seek medical treatment for his injuries in the local hospital.
6. After the incident the Applicant did not report the attack to the police or seek their assistance, but he told his girlfriend on the phone and they decided to elope to Karachi.
7. On the night of 15 June 2015, the Applicant went to the street where his girlfriend’s home was to wait for her for their elope, but he did not see her and instead he saw her brothers coming out from the house menacingly towards him, so he immediately fled from the scene.
8. Afterwards, when he was told by his girlfriend that her family had discovered their plan and had as a result beaten her and locked her up, and that they would be going after him, he therefore left his home district to take shelter at neighbouring Walia Village.
9. About a month later, as he wanted to meet his girlfriend and thinking that it would be safe to do so, the Applicant therefore returned to his home district, but one evening in July 2015 while he was with a friend on his motorcycle on his way to meet his girlfriend,two of her brothers and some men appeared on their motorcycles chasing after him during which they fired their pistols at the Applicant but missed him and instead hit his friend in the leg, and the Applicant managed to escape their chase to take his friend to the hospital for treatments, but again he did not report the incident to the police, and instead he fled to his friend’s place in Walia Village.
10. One day in October 2015 while he was on his way to Attock City to visit his father,the Applicant was ambushed by his girlfriend’s brothers who shot at him with their pistol butdid not hit him and instead hit one of the tires of his motorcycle that the Applicant was thrown onto the ground, but he managed to get up and ran into a field to hide from his assailants.
11. After his girlfriend’s brothers had left, the Applicant then fled to Lahore to take shelter at another friend’s place, but as he felt that it was no longer safe to remain in Pakistan,he therefore departed on 27 December 2015 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 9 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
12. By a Notice of Decision dated 21 March 2018 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”).
13. 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 and substantial risk of him being harmed or killed upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from the family of his girlfriend, that after having left his girlfriend all these years that it is doubtful that her family would still have any adverse interest in him, that in any event his problems with them were private personal disputes 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 Karachi or Lahore where it would be difficult if not impossible for his girlfriend’s family to locate him.
14. On 3 April 2018 the Applicant 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 13 June 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 28 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.
15. In its decision the Board found the Applicant’s evidence of his claim unreliable and incredible and that he had fabricated his alleged relationship with his girlfriend and the opposition from her family, that there was no reliable or credible evidence that he had suffered physical or mental suffering of the requisite severity or that the state or government of Pakistan was unwilling to afford him with protection as he had never approached the police or authorities for help, that it did not accept that he was unwilling to return to Pakistan because of any well-founded fear of being harmed by his girlfriend’s family, and concluded that his claim for non-refoulement protection failed on all applicable grounds.
16. On 9 July 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 put forward the following grounds for his intended challenge:
(1) that the Director failed to take account of or give sufficient weight to the argument that the Applicant had no faith that the Pakistani police and authorities would not be able to provide assistance to the Applicant as they are all corrupt and that the inaction of government officials can effectively hold the state liable for failing to provide reasonable protection to its citizens against risk of torture;
(2) that the Director failed to consider or give sufficient weight to those relevant COI which supported the Applicant’s stance that the police or authorities in Pakistan would not assist him;
(3) that the Director had relied on different sources to conclude that the Pakistani government had taken practical steps to monitor the conduct of Pakistani police and to increase their effectiveness and that there are alternative avenues to seek justice in Pakistan are mere speculations;
(4) that the Director failed to recognize that the corruption and incompetency of the Pakistani police are still extremely serious as supported by various reports of human rights organizations which supported the Applicant’s case;
(5) that the adjudicator failed to attain the high standards of fairness as required by the Wednesbury test as the Applicant was not legally represented;
(6) that the adjudicator failed to make sufficient enquiry before finalizing the decision;and
(7) that the adjudicator concluded that the extent and nature of injuries suffered by the Applicant did not attain the minimum level of severity without advising the Applicant to obtain medical report or evidence from the Pakistani authorities when deciding on the seriousness of his injuries.
17. These are however all very broad and vague assertions of the Applicant containing several pages of 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 Board had erred in their decisions, or in what way did they fail to apply high standard of fairness in assessinghis claim, or how they fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or how the adjudicator fail to make sufficient enquiry before finalizing her decision. 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.
18. As has been repeatedly emphasized by the Court of Appeal, the 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; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and NupurMst v Director of Immigration[2018] HKCA 524.
19. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 38 – 79 of its decision and with the benefit of hearing him in oral evidence and answer to questions raised of his claim during the oral hearing of his appeal, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for him to challenge the finding of the Board.
20. Furthermore, the fact is 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.
21. 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.
22. 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.
Dated the 27th day of May 2020.
| (NG Hang-yin)
for Registrar, High Court |
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
Notesfor the Applicant:
If leave has been granted, the Applicant or his solicitors must: | | | | |
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). | | Sent to the Applicant on 27th May 2020
Farman Naveed
Applicant’s ref. no.:
Nil. | | Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 27th May 2020
The Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 514/18 (Formerly
RBCZ 10073/18) (T2 S102)
Betty Kwan, Adjudicator of the Torture Claims Appeal Board /
Non-Refoulement Claims
Petition Office
2nd Putative Respondent’s ref. no.:
USM 11027/18/4/37/P2131
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1