RAZA HASAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 441/2019

[2022] HKCFI 1199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 441 of 2019

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 (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 12 February 2019 and the decision of the Director of Immigration (the “Director”) in his notice of decision dated 6 March 2018 (the “Notice”).  The Secretary for Justice is named as the proposed respondent instead of the Board or the Director.

2.  The Applicant is a Pakistani national.  He was arrested by the police on 15 July 2014 for illegally remaining in Hong Kong. He then lodged a non-refoulement claim by way of written representation dated 18 July 2014.

3.  In due course, his claim was assessed on all four applicable grounds available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By his Notice dated 6 March 2018, the Director of Immigration (“Director”) rejected his claims.  He appealed against the decision in the Notice.  His appeal was dismissed by the Board’s Decision.  He now seeks leave to apply for judicial review of that Decision. 

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form (“NCF”) which was prepared by him with assistance of the Duty Lawyer Service. 

5.  The Applicant is a Pakistani, now aged 46.  He is a member of the Ahletashee sect of Islam which is in conflict with Sunnis Muslim which is the majority in Pakistan.  He was the main person responsible for conducting religious activities and processions during Muharram (the first month of the Islamic calendar). For that reason, he was always targeted by Shahid, who was the representative of the Sunnis in his area.

6.  One day in 2011, as the Applicant was coming out of his religious place with three or four followers, he met Shahid and three or four of his followers. They had a heated religious argument.  The meeting ended without violence.

7.  A week later, as he was on his way to his religious place, he was confronted by Shahid and three or four of his followers.  Shahid accused the Applicant for not stopping all his activities and then told his followers to assault the Applicant.  His followers then assaulted the Applicant for two to three minutes with bare hands until some passers-by rescued him.

8.  The Applicant discussed with his colleagues.  His colleagues advised against reporting to the police as it was a religious incident and the police would be reluctant to intervene. They advised him to go to China for two months and to return when the matter was resolved.  The Applicant went to China as advised.

9.  Later, the Applicant returned.  He had no problem until he met Shahid and two to four other Sunnis before the month of Muharram in 2014 (which the Board found to be November 2013).  As he walked near Shahid, Shahid stopped him and warned him not to conduct any procession that year, to stay away from all those activities and not to create religious hatred.  He argued with Shahid.  Shahid responded that it would be in the Applicant’s best interest to do as he was told or he would be responsible for what might happen to himself.  The Applicant paid no heed to the threat and continued with his colleagues preparing for their processions during Muharram. 

10.  One day, he was taken to the police station and detained in a cell.  He was told that Shahid had complained that the Applicant had threatened to kill him.  The Applicant was detained for 5 to 6 hours until his leader bailed him out by paying a bribe of 10,000 rupees.  After his release, he continued preparing for the procession.

11.  The procession was held during Muharram in June 2014 (which the Board found to be November 2013) as planned.  As he and his group of about 200 people were walking in the street, they were obstructed by Shahid and about 300 of his followers who were armed with sticks and rods.  Shahid told them to go back and did not allow them to complete their procession.  The Applicant tried to negotiate with Shahid.  But suddenly, Shahid ordered his people to attack the Applicant’s group.  The Applicant and some 30 to 40 of his group were surrounded by Shahid’s people who started to beat them.  The Applicant’s wrist was cut and bled.  He was beaten all over the body with sticks and metal rods. 

12.  The Applicant and five to ten of his group were seriously injured.  They were treated in Meo Hospital.  The Applicant received 20 stitches in his left hand.  He was discharged from the hospital the next day.  He and his group went to the police station to make a report.  But the police refused to register the complaint saying it was a religious dispute and the police would not get involved.

13.  A month after the incident, when he was on his way to his religious place, the Applicant saw Shahid and his followers.  Upon seeing him, Shahid told his followers to catch the Applicant.  However, the Applicant managed to make good his escape.

14.  The Applicant discussed with his colleagues about moving to other areas in Pakistan, but was eventually persuaded to leave Pakistan for China.  He flew to China and then sneaked into Hong Kong.

The finding of the Board

15.  The Board referred to the Country of Origin Information (“COI”) which showed that Muharram occurred in November in 2013 and 2014 and not in April as the Applicant asserted.  The Board had reservation about the accuracy and reliability of the Applicant’s evidence.  It nevertheless gave him the benefit of doubt and assumed that he was a poor witness rather than an untruthful one.  The Board accepted that he is a Shia Muslim who had been assaulted in the past by hard line Sunni cleric named Shahid and/or his followers in 2011, that he was briefly falsely imprisoned by the police at Shahid’s behest in 2013 before being released when the leader of his sect intervened, and that his sect’s procession was attacked in November 2013, resulting in the Applicant requiring hospital treatment before being discharged the following day.  The Board also accepted that the Applicant was subsequently threatened and chased by his opponents when he encountered them approximately a month later.  It also accepted that it was these incidents which twice precipitated the Applicant’s departure from Pakistan.  The Board assessed the Applicant’s risks or entitlement to protection on the basis of his case as asserted by him.

16.  The Board noted, first, that the Applicant only experienced actual harm on two occasions over a number of years.  Second, the worst injury the Applicant received was a cut requiring stitches.  The Board noted that although the Applicant’s opponents had a number of opportunities to seriously injure or even kill him, they did not do so. Third, the Board noted that the Applicant only faced serious problems around the time of Muharram, consistent with the narrative eventually agreed on at the oral hearing that nothing actually happened to him during the period of approximately six months immediately before he last departed Pakistan.  Finally, the Board discussed some COI with the Applicant at the oral hearing, including the South Asian Terrorism Portal, report suggesting that no Shia has been killed in sectarian violence in Lahore since 2013, and the three Pakistani media reports suggesting that security is now paramount at the annual Ashura processions in Lahore and elsewhere in Pakistan with a concomitant diminution of risk to Shia participants.

17.  Based on the above finding and observation and the Applicant’s claim and evidence before it, the Board was not satisfied that the Applicant faced more than a remote possibility of being subjected to serious or significant harm for reason of his religion, if he returns to his home in Lahore, Pakistan in the reasonably foreseeable future.  The Board also found on the basis of the COI that internal relocation is available to avoid the threat of harm by Shahid and his associates in his home town of Lahore and it would be reasonable in all the circumstances to expect him to so relocate.

18.  In respect of the Torture Risk ground, the Board did not consider there is any risk of severe pain or suffering likely to be inflicted on the Applicant should he return to Pakistan and was not satisfied that there are substantial grounds for believing he would be in danger of being subjected to torture, if refouled.

19.  Similarly, in respect of BOR 3 Risk ground, the Board was not satisfied that the Applicant would face a genuine and substantial risk of being subjected to torture or cruel, inhuman degrading treatment or punishment if returned to Pakistan.

20.  Likewise, the Board was not satisfied that the Applicant would face a real risk of being arbitrarily deprived of his life, having the death penalty imposed on him, or otherwise being deprived of his rights under BOR 2.  The Board therefore found that returning him to Pakistan would not expose him to a real risk of a violation of his right to life so as to constitute a breach of BOR 2.

21.  In respect of the Persecution Risk ground, the Board was not satisfied on the evidence before it that Applicant has well-founded fear of being persecuted in Pakistan whether for reason of any of the grounds under the 1951 Convention relating to the status of Refugees or for any other reason.

22.  For the above reasons, the Board dismissed the Applicant’s appeal.

The applicable legal principles     

23.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

24.  The Applicant did not state his grounds for application in his Form 86.  In his supporting affirmation, he recited his case as summarised above, which had been considered by the Board.  He also mentioned persecution of Shia Muslims by the Sunnis, the discrimination Shia Muslims suffered and the difficulties for Shia Muslims in practising their religion.  These are new matters which had not be raised by him before.  In any event, they had been mentioned by the Board and taken into account in its consideration of the COI. 

25.  In paragraph 9 of his affirmation, the Applicant disagreed with the COI on which the Board’s finding was based. He submitted that the government is ruled by the Sunnis; the Shias are not represented; and the COI published are fake news.  

26.  In paragraph 10 of his affirmation, he criticised the Board for not believing he had led the processions because at the time he was very young.  This is incorrect.  He was a mature man in his late thirties at the time of the incident.  Despite the quality of his evidence, the Board gave him the benefit of doubt and actually accepted his case as he asserted.  The Board accepted he took part in the processions and was targeted for attack by Shahid.

27.  In paragraph 11 of his affirmation, he complained the Board’s finding that he had no problem returning to Pakistan.  In his last paragraph, he repeated his unwillingness to return to Pakistan and his fear of being killed by the Sunnis.

28.  In summary, his grounds are basically challenges against the Board’s reliance on the COI and its finding that it was safe for him to return.  The weight to be given on a piece of COI is essentially a finding of fact by the Board.  As mentioned above, the primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  Thus, the Applicant’s application is in essence an appeal against the finding of fact by the Board dressed up as a judicial review.  In a judicial review, the Court shall only focus on whether the decision impugned was reached as a result of errors of law, procedural unfairness or irrationality.

Discussion and conclusion

29.  The Board did rely on some of the COI in reaching its Decision.  It is not known which COI the Applicant is now complaining of.  Notably, the Board referred to the COI mentioned in footnotes 23 to 26. 

30.  Footnote 23 referred to the website of BBC and two other websites about the date of Muharram in 2013.  It only helped to identify for the Applicant’s benefit the date of the incident complained of by the Applicant. 

31.  Footnote 24 referred to a report in the website of South Asian Terrorism Portal containing compilation of reports of Shias killed in sectarian conflict since 2001.  The report was shown to the Applicant at the hearing.  The Board discussed the report with him and he raised no challenge about the accuracy of the report.

32.  Footnote 25 referred to website of news agencies in Pakistan about government measures taken to protect processions or processions during Muharram.  Footnote 26 referred to a website of DAWN, another news agency in Pakistan.  It is a report about the village of Qila Bhattian Wala where Shias and Sunnis have always lived in harmony and even worshipped in the same mosque.  The Board had shown the news and reports to the Applicant and discussed with him at the hearing.  He did not raise any challenge to their authenticity and truthfulness.

33.  Other than a bald assertion that the COI are unreliable and biased in favour of a government run by Sunnis, the Applicant provided no particulars, not even any hint, as to what are untrue, not to mention his failure to provide any publication contradicting those COI.  The Board had shown him the COI and discussed the COI with him at the hearing.  He raised no challenge to their authenticity and truthfulness.  The Court considered there is no merit in this ground.

34.  There main thrust of the Applicant’s grounds is a challenge against the finding of fact by the Board. The Board assessed his fears and risks on the basis of the case as he asserted.  It was on the basis of his case that the Board assessed that the injuries he would suffer, if refouled, would not attain a minimum level of severity, that he would not face a genuine and substantial risk of being subjected to ill-treatment, that his risk is low and his fear not genuine. These are finding of fact solely within the province of the Board.    

35.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board assessed his fears and risks on the basis of the case as asserted by him.  It was on that basis that the Board found the Applicant failed to prove the factual basis to support his claims for non-refoulement protection under any of the four applicable grounds.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality.  The Court could detect no error of law in the Decision or procedural unfairness in the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.

36.  For the above reasons, the Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  Accordingly, leave to apply for judicial review was refused.

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at para 14(1)