DIN SHAMAS v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 9/2018

[2019] HKCFI 442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 9 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 oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 28-year-old national of Pakistan who entered Hong Kong illegally on 15 November 2015 and was arrested by police on 2 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 some Sunni Muslims over religious dispute.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised as a Shia Muslim in Village Snday Chak, District Sialkot, Province Punjab, Pakistan where his parents and siblings still live.  After leaving school he worked as a construction worker and regularly prayed in a local mosque.

3.  One day in April 2013 while he was praying with some 20 fellow Shia Muslims in the mosque, suddenly about 50 Sunni Muslims stormed in with wooden sticks and clubs and demanded that they stopped praying and to leave, and when they refused, the Sunni Muslims proceeded to attack them until the police arrived and took those injured Shia Muslims including the applicant to hospital for treatments.

4.  Despite having taken statements from some of the Shia Muslims including the applicant, the police however took no further action against those Sunni Muslims who several months later in December 2013 carried out another attack against Shia Muslims praying in the mosque including the applicant who was knocked unconscious whilst two of the Shia Muslims were killed during the attack.

5.  After his discharge from the hospital the applicant took shelter at a friend’s place in Lahore for several months without any further incidents until one day in April 2014 when he ran into the same group of Sunni Muslims who proceeded to beat him and cut his fingers with a knife until some passers-by intervened and the applicant was then taken to the hospital for treatment.

6.  After the third attack in Lahore the applicant decided to depart Pakistan for his own safety, which he did on 24 August 2014 when he flew to China, and from there he later sneaked into Hong Kong on 15 November 2015, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  Whilst being released on recognizance the applicant was arrested by police again on 7 December 2016 for using a false identity card and for taking up employment without permission, for which he was later convicted and sentenced to 15 months’ imprisonment.

8.  By a Notice of Decision dated 11 August 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 assessed the level of risk of harm from those Sunni Muslims upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that he was specifically targeted by those Sunni Muslims or that there was any real intention on their part to seriously harm him, that in the absence of 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 202 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 young man with work experience to move to other part of Pakistan away from his home district in large cities such as Karachi or Islamabad where it would be difficult if not impossible for his perceived enemy to locate him.

10.  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 November 2017 before the Board during which he gave no further evidence in support of his claim but did answer some of the questions put to him by the adjudicator for the Board.  On 22 December 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board found inconsistencies and contradiction between what the applicant had stated in his NCF and in his answers given to the Board that the account of his claim was considered not credible, that he had manifested an intention to come to work rather than for non-refoulement protection, and that in any event reasonable internal relocation alternatives are available in Pakistan for him to move away from his home district to other large cities such as Karachi or Islamabad where he can safely live and work as it would be extremely difficult if not impossible for those local Sunnis to locate him. 

12.  On 2 January 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 merely stated that he wanted to judicial review the Board’s decision because it was unfair and unreasonable but without providing any particulars or specifics or elaboration how it was so, or how the Board had erred in its decision.

13.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where 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; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

14.  In the applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in paragraphs 22 – 23 of the decision, of which it was entitled to on the basis of the evidence and information available before it, and in the absence of any legal error or procedural unfairness being properly identified by the applicant in the decision, I do not find any basis or merits in his complaint that it was unfair or unreasonable.  

15.  Furthermore, the fact 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.

16.  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.

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