AHMAD AZIZ alias AZIZ AHMAD AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave for the Applicants to apply for judicial review be refused.

Observations for the Applicants:

1.  The Applicants are a married couple and their 2 adult daughters all nationals of Pakistan who arrived in Hong Kong on 9 May 2009 as visitors with permission to remain as such up to 23 May 2009 when they did not depart and instead overstayed, and on 8 June 2009 they surrendered to the Immigration Department and jointly raised a torture claim on the basis that if they returned to Pakistan they would be harmed or killed by their family members and relatives as well as the majority Sunni Muslims for converting their religion from Sunni Islam to Shia Islam, and after their torture claim was rejected, they then sought non-refoulement protection on the same basis.  They have been released on recognizance pending the determination of their claims.

2.  The 1^st Applicant (“A1) now at the age of 69 was born and raised as a Sunni Muslim in Karachi and subsequently moved to Islamabad with his parents and siblings. After leaving school he worked as a salesman and later a sales manager in his home district in Islamabad, married his wife the 2^nd Applicant (“A2”) now aged 62, and raised a family with 3 daughters: 3rd Applicant (“A3”) now aged 39, 4^th Applicant (“A4”) now aged 37, and youngest daughter who is not an applicant in these proceedings, and that all of them were also Sunni Muslims.

3.  In 2001 A1 went to work in Karachi where he befriended a colleague who was a Shia Muslim and soon learned from him various aspects of the Shia Islam which he had become interested, and in 2006 A1 started to attend with his said colleague various Shia religious meetings and activities in Karachi, and eventually in March 2008 A1 converted his religion into Shia Islam, and thereafter he informed his wife and children when all of them subsequently within a few days also converted their religion into Shia Islam.

4.  However, in March 2008 A1 received a phone call from his brother in Islamabad who worked as an accountant for the government and who liked the rest of his family was a Sunni Muslim accused him of bringing shame and dishonor to their family with his conversion, and threatened him that there would be serious consequences.

5.  One evening in April 2008 while on his way home from work, A1 was abducted by some unknown men at gun point to some remote area where he was severely beaten with wooden sticks for converting his religion, and was only released the next day after being warned by those men that next time he would be killed if he still failed to re-convert his religion back to Sunni Islam.

6.  In May 2008 A1 and his family returned to their family home in Islamabad, whereupon his brother together with many of their family members and relatives came to demand that he and his family re-converted back to Sunni Muslims, and when he refused, they punched and kicked him violently that his mouth was bleeding after losing a tooth, while his wife also suffered injuries to her hand by a knife, and before they left, his brother and relatives warned A1 that next time they would kill him and his family if they still refused to re-convert back into Sunni Muslims.

7.  Several days later while having dinner at home, someone threw stones at their windows and smashed the glasses, of which they suspected were done by some of their angry relatives.

8.  By end of May 2008 A1 returned to his work in Karachi where he kept receiving threatening phone calls from his brother and some unknown persons, while A2 in Islamabad also received similar threatening phone calls from her sister.

9.  One day in June 2008 A2’s sister together with other Sunni Muslims gathered outside the Applicants’ home and shouted threats and abuses at A2 and her daughters that they became fearful and had to flee from the backdoor to hide in a friend’s home until those people left that they returned to their home.

10.  On another occasion in October 2008 when 2 of the daughters were on their way to college by bus, they were stopped by some unknown men on the highway, and when those men demanded the daughters to get off the bus, the driver tried to push them out of the bus and in the scuffle injured one of his fingers, and it was only when a police constable arrived that those men fled from the scene and that the daughters were able to continue their journey to school.

11.  One day in December 2008 one of the Applicants’ neighbors was murdered, and when A2 together with other neighbors attended at the local police station to give their statements, she noticed her cousin who had earlier made threats against her and her family was also present at the police station, and suspected that he might have something to do with the murder that she became so frightened that she fainted and was taken to the hospital for medical examinations and treatments.

12.  On another occasion in January 2009 while one of the daughters namely A4 was on her way home from school, some unknown men on motorcycles tried to attack her with a pair of scissors but A4 managed to make her escape without injuries, and the Applicants suspected that it was another attack against them to try to force them to re-convert back to Sunni Muslims.

13.  To avoid such further threats and attacks, A1 decided to move his family to Lahore, and while there looking for suitable accommodation, A2 received a call from her father warning her that some of their relatives had planned to harm her and her family in Lahore, and so the Applicants immediately moved back to Islamabad, and thereafter A1 returned to work in Karachi.

14.  However, after A3 and A4 narrowly escaped from another attack by unknown strangers while on their way to school, A1 decided that it was no longer safe for him and his family to remain in Pakistan, and so on 9 May 2009 they departed for Hong Kong where they subsequently overstayed and raised their torture claim, and after it was rejected they then sought non-refoulement protection, for which they jointly completed a Supplementary Claim Form (“SCF”) on 29 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

15.  By a Notice of Decision dated 28 September 2018 the Director of Immigration (“Director”) rejected the claim of the Applicants on all the remaining applicable grounds other than torture risk including risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

16.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claims and assessed the level of risk of harm from those local Sunni Muslims including their relatives upon their return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of many of their alleged threats or attacks being instigated or inflicted by Sunni Muslims over their religious conversion other than their own suspicions and speculations, nor is there any evidence of any real intention of their relatives to seriously harm or kill them other than angry words and empty threats, that in any event it was a private religious dispute between the Applicants and their relatives only without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that Sunni and Shia communities are generally integrated and live side by side peacefully in their daily lives in Pakistan with no serious discriminations against the minority Shias including in their employment by the government and that they are well represented in the Parliament, the police, judiciary and other institutions as well as across most of Pakistan’s ethnic, linguistic and tribal groups with Shia mosques and sites of worship located across the country including major cities and towns that it is not accepted that the Applicants as Shia Muslims will face any real risk of harm or discriminations or persecutions for religious reasons, and that if necessary that reasonable internal relocation alternatives are also available in Pakistan with a large population of 201 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicants as able-bodied adults with working experience to move to other areas of the country away from their home district in large cities such as Lahore or Rawalpindi where it would be difficult if not impossible for anyone to locate anyone of them.

17.  On 5 October 2018 the Applicants each lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they jointly attended an oral hearing on 9 December 2019 with their lawyer from DLS before the Board during which all of them gave evidence and answered questions raised of their claim by the Adjudicator for the Board and with submissions made on their behalves by their lawyer.  On 27 May 2020 their appeals were dismissed by the Board which also confirmed the Director’s decision.

18.  In its decision[1] the Board found material inconsistencies discrepancies and contradictions in the Applicants’ evidence that it doubted and rejected the credibility of their claims of having ever converted their religion from Sunni Islam to Shia Islam which had led to risk of harm from local Sunni Muslims including their relatives that caused them to leave their country to come to Hong Kong to seek protection, that it is not considered as credible or plausible that the Applicants did ever convert their religion from Sunni Islam to Shia Islam under the circumstances as asserted by them that the Board did not accept that any of the Applicants had in fact converted into Shia Muslim at all, and that even if they had that it is not accepted that they had faced any real threats or risk of being harmed by their Sunni Muslims relatives or community from the time of their claimed conversions up to when they departed Pakistan, or that they will face any such risk or of any proscribed form of harm upon their return to Pakistan that their claims for non‑refoulement protection failed on all the applicable grounds.    

19.  On 6 August 2020 the Applicants jointly filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form or in A1’s supporting affirmation of the same date, and at the hearing of their application A3 who was chosen to address the Court on behalf of the Applicants just repeated their claims as before and stated that they do not agree with the decision but without putting forth any proper ground for their intended challenge.  As such, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge of the Board’s decision.

20.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

21.  In the Applicants’ case, the Board rejected their claims essentially on its adverse finding on their credibility for the thorough and detailed analysis and reasoning set out in paragraphs 103 – 131 of its decision with the benefit of hearing all of them in their oral evidence and their answers to questions raised of their claims, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.

22.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicants’ claim even if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Pakistan, a decision also agreed and confirmed by the Board, there is simply no justification to afford any of them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

23.  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 Applicants’ claims.

24.  For all these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss their 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