NASIR ABDUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 677/2018

[2019] HKCFI 2965

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 677 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 44-year-old national of Pakistan who last entered Hong Kong illegally on 9 January 2015 and was arrested by police on 12 January 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 both Sunni and Shia Muslims for refusing to join their religious practices.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Sunni Muslim in Village Saroki, District Gujrat & Tehsil, Province Punjab, Pakistan.  After leaving school he worked in a grocery store, got married and moved to New Abadi, Muhallah Islampura in the same District Gujrat & Tehsil in Punjab.

3.  Although the Applicant was raised as a Sunni Muslim, he later developed an interest in the Shia branch of Islam and started to attend some of the Shia religious gatherings and activities in his local area, much to the displeasure of his parents and siblings, and when some Sunnis had complained to his father and threatened of dire consequences to his family,his father together with his brothers angrily rebuked the Applicant, slapped him on the faceand hit him with wooden sticks, and locked him in the house for two days until he eventuallysuccumbed to their demand to abandon any interest in the Shia branch of Islam.

4.  However, some local Sunnis were still suspicious of the Applicant and would continue to threaten and harass him, even attacking him on a few occasions by punching and kicking him on the streets.  Eventually the Applicant found himself unable to tolerate such harassments that he took shelter in Lahore in the hope that the resentments of the local Sunnis in his home village would eventually die down, but when he was told by his wife that situation at home was still dangerous and that he would risk being killed if returned to his home town, the Applicant decided to leave Pakistan, which he did in 2006 when he came to Hong Kong illegally and was arrested by police in July 2007 when he then raised a torture claim, but before it was determined by the Immigration Department, he withdrew his claim in March 2010 and was eventually deported in May 2010 to Pakistan.

5.  Upon returning to his home village in New Abadi, however, the Applicant would again encounter threats and harassments from the local Sunnis still suspicious of his religious conviction, including two incidents in 2012 when men fired shots outside his home threatening to kill him and his sons should he dare to entertain any thought of converting to a Shia Muslim.

6.  One day two Shia Muslims came to the Applicant and invited him to attend Shia religious activities, and when he insisted that he was a Sunni Muslim and declined their invitation, the men then left.  However, several days later when the Applicant ran into the same two men at the bazaar, he was attacked when they punched him and beat him with the butts of their pistols that he lost consciousness and was brought by some passers-by to a local clinic for medical treatments.

7.  After the assault the Applicant fled to Lahore, but when he was told by his father that both Sunnis and Shias had come to his home looking for him, he decided to move his family to Bahawalpur to stay with his in-laws, and in 2012 he went to work in Lahore without any further incidents until 2014 when he was told by his father that the Sunnis and Shias had found out about his location in Lahore, he therefore felt it was no longer safe to remain in Pakistan, and so in December 2014 he departed for China, and from there he again sneaked into Hong Kong, and upon his arrest he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 29 January 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 4 August 2016 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 under Article 3 of the Hong Kong Bill of Rights (“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 assessed the level of risk of harm from those Sunni and Shia Muslims to the Applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that in the absence of 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 199 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other partof Pakistan away from his home district in large cities such as Karachi or Lahore where he had stayed for more than two years without any incidents and where it would be difficult if not impossible for his perceived enemies to locate him.

10.  By a Notice of Further Decision dated 11 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be 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”).

11.  By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 15 August 2016, and for which he attended two oral hearings respectively on 4 January 2018 and 28 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 6 April 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board found some aspects of the Applicant’s claim exaggerated,others inherently impossible, and some too vague to be given any weight, and concluded that the level of risk of him being subjected to ill-treatment upon return to Pakistan as low given that the crux of his dispute with his enemies relates to an incident that took place many years ago, that the Applicant had since resided in New Abadi for some two years without further incidents, that there was no reliable evidence to suggest that the two men who allegedly attacked him in New Abadi had any intention to seriously harm or kill him, and that in any event state protection and reasonable internal relocation alternatives for theApplicant to relocate safely to other parts of Pakistan such as Bahawalpur where his wife and children had been living for the past six years, or Lahore where he had lived before without incidents, or Islamabad where it would be difficult if not impossible for his perceived enemies to locate him that his non-refoulement claim failed on all applicable grounds.

13.  On 19 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds amended with leave of this Court for his intended challenge:

 (1) that the adjudicator failed to apply the correct legal test in assessing his credibility or to give adequate reasons for dismissing his claim; 

 (2) that the adjudicator misdirected herself on the law by attaching no weight to the primary evidence in assessing the credibility of his claim; and

 (3) that the Board’s decision is irrational in material aspects.  

14.  The Applicant’s complaints under the first two grounds about the adjudicator’s failure to apply the correct test and placing no weight on the primary facts in assessing his credibility can in fact be considered together.

15.  Specifically for Ground (1) the Applicant complains that the adjudicator’s analysis of his claim was based on an error or confusion as to the material facts about the two Shooting Incidents in May 2012 when men fired shots outside his home and threatened his father that they would kill the Applicant if he were to convert to Shia Muslim, of which he argues that the adjudicator was wrong to find as a fact that he claimed to be present in both incidents when he was not in the first incident, and that his account of both of them were both vague and unreliable to be given any weight as both factually incorrect and that his evidence was all along consistent.

16.  As for Ground (2), the Applicant’s complaint is that the adjudicator was unreasonable not to place any weight on the primary evidence that he was being subjected to threats from the Shia Muslims notwithstanding having been attacked by two Shia men at the bazaar in the Assault Incident.

17.  Whilst it is true that the adjudicator was factually incorrect to state in [16a] that the Applicant had suggested in his NCF and the Answers that he was present during the First Shooting Incident when in fact he did not do so, and given the consistent evidence given by him as to the threats from both Sunni and Shia Muslims, I agree that there may bemerits in his complaint over adjudicator’s finding that some aspects of his claim as too vague to be given any weight, but the adjudicator was in my judgment however entitled to find in her final analysis in [24] that the level of risk of the Applicant being subject to such ill-treatment if he was to be refouled to Pakistan was low given the unchallenged facts that “the crux of the Applicant’s dispute with his enemies relate to an incident that took place many years ago” that he had “resided in the New Abadi home and led a relatively normal life for some two years”, and that “The Applicant was then able to spend the next two years in Lahore living peacefully without disturbance by his enemies … despite the Applicant’s father claiming that the Applicant’s enemies all knew he was residing in Lahore.”  

18.  The same can be said about the Applicant’s complaint under Ground (3), in which the adjudicator was said to be irrational in finding that there was no intention of the two men who attacked him at the bazaar to kill him, which was obviously just a statement of fact by the adjudicator, perhaps unnecessarily so in the circumstances as the threats of possible serious harm or even death in the future were obviously there, but for the same reasons given above, the adjudicator was entitled to find in her analysis based on the evidence taken as a whole as well as the availability of state protection that the level of such risk would be low in the circumstances of the Applicant’s case.

19.  Above all, the fact is that it has been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong:see TK v Jenkins & anor [2013] 1 HKC 526, and I do not find any basis to challenge such finding of the Director or the Board.

20.  At the hearing of his application before me, the Applicant asked for more time to be allowed to remain in Hong Kong so that he may complete his medical treatment which he has been receiving in the government hospital, the same request made to the adjudicator referred to in the Board’s decision and of which the adjudicator was right to find not a valid ground for his non-refoulement claim [24h].   

21.  In the premises I do not find any of the grounds of the Applicant reasonably arguable for his intended challenge, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, nor do I find anyerror of law or procedural unfairness in either of them, nor any failure on their part to applyhigh 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.

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