ALI IMTIAZ v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 56/2019

[2022] HKCFI 2164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 56 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:

1.  The Applicant is a 42-year-old national of Pakistan who entered Hong Kong illegally on 4 March 2016 and surrendered to the Immigration Department on 9 March 2016 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by a group of the local Shia Muslims in his home village due to their religious dispute as he was a Sunni Muslim. He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised as a Sunni Muslim in Village Mahore, District Mirpur, Azad Kashmir, Pakistan. After leaving school he worked as a photographer and ran his photography and video shop in Jatlan where he often worked for the Sunni Muslim community by taking photographs of their local activities.

3.  One day in March 2009 a group of several local Shia Muslims came into his shop to demand him to stop working for the Sunni Muslim community and to convert his religion to become a Shia Muslim, and when he refused, they slapped and pushed him around and made threats against him before they left.

4.  As those Shia Muslims kept coming to his shop to threaten and harass him, the Applicant in late 2010 relocated his shop to Mirpur City closer to his home village, but in 2013 the same group of Shia Muslims again came to his shop to again threaten and harass him, and on one such occasion in December 2015 those men proceeded to attack him with sticks until some neighbours intervened but the Applicant suffered injuries to his face that he was subsequently taken to the local hospital for medical treatments.    

5.  After the last incident the Applicant felt it was no longer safe to remain in Pakistan, and so he fled to Islamabad, and on 14 February 2016 he departed Pakistan 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 (“NCF”) on 19 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 24 January 2018 the Director of Immigration (“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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by those Shia Muslims upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that in the absence of any official involvement that state 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 205 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 working experience to move to other area away from his home district in large cities such as Lahore where it would be difficult if not impossible for those local Shia Muslims to locate him.   

8.  On 5 February 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 9 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 4 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted the Applicant’s evidence that he had been subjected to threats and ill-treatment by a small group of Shia Muslims in his home district that caused he to fear of being harmed or killed by them in his home district, but found in the absence of any official involvement that state/police protection would be available to the Applicant if needed upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.   

10.  On 8 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That no legal representation was provided to him for his appeal to the Board;

(2)  That the Director rejected his claim simply for the sake of rejecting all non-refoulement claims by adopting a very uninformed approach in coming to his conclusion;

(3)  That the Adjudicator failed to properly address those issues set out in the Applicant’s appeal to the Board and instead came up with the assessment in the same template basis such as the finding that his claimed fear was not well-founded despite detailed accounts of physical assaults provided by the Applicant that state protection would not be available or sufficient;

(4)  That the Board failed to apply high standards of fairness in rejecting the Applicant’s claim on credibility despite all the evidence and materials provided by him in support of his claim that the Board’s decision was unfair unreasonable and illogical;

(5)  That the Director had cited various COI which supported the Applicant’s claim with regard to state protection but still ruled against his such assertions by mentioning that the situation in Pakistan had improved without explaining how its balancing exercise was conducted or how did he came to his conclusion that particular COI outweigh the others;

(6)  That the Board’s analysis of the availability of internal relocation was a viable option to the Applicant was seriously flawed and irrelevant to his claim by randomly mentioning certain cities and relying only on their population and language used without considering the difficulty that the Applicant would have to survive due to his personal situation; and

(7)  That the hearing bundle for his appeal was served on him only shortly before his appeal hearing before the Board without any translation that he was not able to properly prepare for his appeal.     

11.  For his complaint under Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

12.  The Applicant already had the benefit of legal representation from DLS in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions raised of his claim by the Adjudicator without difficulty with the assistance of the interpreter. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

13.  As for his complaints under those other grounds listed above, they are just vague and bare assertions without any details or particulars or elaboration as to how they apply to his case, or in what way did the Director or the Board fail to apply high standards of fairness or to consider the relevant COI properly or sufficiently in their assessment of his claim, or how did they err in their assessment of the issues of state protection or internal relocation being available to the Applicant in the circumstances of his case when in fact both the Director and the Board had made full and proper assessment and determination that such options are readily available to the Applicant to negate his claimed risk which based on his own case is without any state or official involvement. As such I do not find any of these grounds reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, nor do I find any basis for this intended application.

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

15.  Furthermore, the fact is that it has been correctly established by both the Director and the Board in their decisions 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