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HCAL 2920/2018
[2021] HKCFI 762
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2920 of 2018
BETWEEN
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Ahmad Ashfaq |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant was born on 10/4/1965 in Tariqabad Village, Punjab, Pakistan. He was married with one son. He was a Sunni Muslim. He received education up to high school level. He was a farmer growing wheat, rice and sugarcane on his own land inherited from his father. His siblings and family were in Pakistan.
2. He left Pakistan in September 2013 for China. He stayed in Guangzhou until September 2015. He then moved to stay in Shenzhen until November 2016. He sneaked into Hong Kong on foot. He was arrested by the police on 7/3/2017 for the offences of theft and illegal remaining in Hong Kong [1]. He lodged the non-refoulement claim in this case on the same day.
3. The Director rejected his claim on 31/10/2017. The TCAB dismissed his appeal on 13/12/2018. He filed the leave application on 19/12/2018.
Background [2]
4. In 1985, he decided to covert to Shia Muslim. He became the only Shia Muslim in his village. There was no difficulty with other villagers. He had visited Hong Kong before. (1991-1992, 2003-2007)
5. He invited Shia Muslims from other villages to a commemorating ceremony in his village each year. In 2003, he heard propaganda that some people wanted to kill him as he put up a Shia flag at his house and they would not tolerate the annual ceremony. He fled to Hong Kong and overstayed here from 2003-2007. During this period, he cohabited with a Filipino woman. In 2007, he returned to Pakistan as he heard that it was safe to return to his village. He was not aware of UNHCR protection scheme in Hong Kong then.
6. After his marriage in 2008, he intended to build an Imam Bargah [3] next to his house for Shia Muslims to pray in the village annually [4]. It cost 1 million rupees. However, Sunni villagers objected. He took no further action for several years because of financial problems. He agreed that there were already two Shia mosques in the vicinity of his village. However, he wanted his own mosque to pray for the rest of his life.
7. In 2012, he resumed the building plan. He was threatened by other villagers who would not tolerate a Shia Imam Bargah in the village. They even threatened to kill him.
8. In June 2012, some unknown people fired at him while he was driving home in the evening. He was not injured. He fled to a friend’s house nearby. He reported to the police the next day but he believed that the police did not register his complaint.
9. In September 2012, two men on a motorbike fired at him while he was driving to Okara City. He escaped safely. He reported to the police who took no action.
10. In late 2012, he received calls threatening to kill him if he built the Imam Bargah. He was worried and hid at the family house of his wife which was about 50 km away from home. He stayed there for 2 months. In early 2013, he hid himself at the houses of two friends in the vicinity of Lahore City for a total of about 9 months.
11. Around September 2013, he took a flight to Guangzhou where he stayed for 2 years. He then went to Shenzhen and heard about the non-refoulement protection scheme in Hong Kong. He thus sneaked into Hong Kong in November 2016.
12. He knew there was no protection scheme in China. He did not come to Hong Kong earlier as he had already overstayed twice. He did not file a claim as soon as he arrived in Hong Kong in 2016 as he was afraid of a long sentence for illegal remaining.
13. He could not relocate as Sunni Muslims were everywhere. He had no financial means and no network. He could be easily located.
14. In the interview before the Director, he agreed that the threat and attack would stop if he stopped building the Imam Bargah. He was well off in Pakistan. His family lived at the family house of his wife. He heard from friends that the Sunni Muslims were still looking for him. He had to pay a bribe in order to have assistance from the police or other authorities who were mainly Sunni Muslims. They would only serve Sunni believers. He believed that there might not be discrimination of Shia and Sunni Muslims at the government level but the two groups were against each other. There was no channel to complain against the police.
15. He feared that the Sunni villagers would harm or kill him if he returned to Pakistan. He was an active Shia and would try to build an Imam Bargah again.
The Decision of the Director
16. The Director found that there was no real and substantial risk of harm for the following reasons: [5]
(a) He had been practising Shia Muslim freely since 1985 in his village. The dispute only arose when he planned to build an Imam Bargah in 2008. In fact, he admitted that the dispute would stop if he did not proceed with the building plan. He was safe when he fled to his in-laws and in Lahore. The threat was localized. It was a far-fetched assertion that all Sunni Muslims would harm him elsewhere in Pakistan.
(b) The applicant asserted that the police sided with the Sunni Muslims. There was no concrete evidence. There was insufficient evidence that the police would not discharge their duties nor exercise due diligence despite the alleged conduct of the local police officers.
(c) The COI revealed that there was sectarian and religiously-motivated violence against Shia Muslims, Christians and Hindus who were the minority religious groups in Pakistan. However, other COI reported significant Shia influence in the government and representation in the parliament, the police, the judiciary and the Council of Islamic Ideology. In fact, Sunni leaders were also attacked. The problem was chronic and among the religious extremists.
(d) Police abuse of power and corruption was common in Pakistan. However, there were improvements in Punjab in training technical skills and human rights protection for the police. The NAB was tasked to tackle corruption. Citizens could complain to higher ranking officers if there was failure of duties. There was the District Public Safety and Police Complaints Commission monitoring police misconduct. There was the Ombudsman office to address grievances of misconduct in administration.
(e) The threat to the applicant was localized. There was no indication that the Sunni Muslims in his village would escalate the threat to other parts of the country. Pakistan was a large country with 204 million people. It was difficult to locate the applicant. The law in Pakistan permit relocation. It would be viable for the applicant to relocate to Lahore and Islambad.
17. The Director rejected the applicant’s claim on all grounds.
The Decision of TCAB
18. The applicant gave evidence during the hearing on 18/9/2018. The adjudicator rejected his appeal on 13/12/2018.
19. The adjudicator found that the applicant was not credible for these reasons: [6]
(a) The applicant claimed during the hearing at TCAB that there was propaganda threatening to kill him by Sunni Muslims in 2003. He thus fled to Hong Kong and stayed for 4 years. This propaganda of threat was never mentioned in his NCF. It was also not mentioned during the interview before the Director.
(b) He returned to Pakistan in 2007 as his friend told him it was safe in the village. However, in his NCF, he said that in 2008, the villagers objected to his building an Imam Bargah. The reason for his return to Pakistan was unconvincing and inconsistent with the situation in 2008.
(c) The applicant wanted to build a large Imam Bargah accommodating 1000 people while there were already two Shia mosques nearby. In fact, in his absence, all these Shia Muslims were able to commemorate on their own elsewhere.
(d) The applicant told the adjudicator that between 2003-2007, there was a change of regulations which required a boundary wall of 8-9 feet to accommodate the Shia Muslims in the Imam Bargah. This change of regulations was his justification to build an Imam Bargah in 2008. This change was not mentioned in his NCF and in his interview before the Director. His explanation for not mentioning it was not satisfactory [7].
(e) The applicant did not file any protection claim during his stay in Hong Kong in 2003—2007. He did not file any protection in China from 2013—2016. He delayed for about 4 months from November 2016 to March 2017 before filing the claim in this case. It was only after his arrest. Throughout these periods, he was allegedly in fear of his life. His conduct was inconsistent with his fear. His explanation was unconvincing.
(f) In his NCF, he rejected relocation on the ground of financial problem and lack of network. However, he admitted during the hearing that he was well off in Pakistan with a house worth 2 million rupees.
20. The adjudicator found the applicant was not a witness of truth. His story was not credible. There was no intention to build an Imam Bargah. There was no shooting. There was no threat from Sunni Muslims. There was no real risk of him if he returned to Pakistan.
21. The adjudicator concluded that the applicant had not made out a case for non-refoulement protection. Given the rejection of his story, all grounds under BOR 2, BOR 3, persecution risk and torture risk failed.
Judicial Review
22. The applicant filed the leave application on 19/12/2018. He disagreed with the decisions of the Director and the TCAB. He had not pointed out any specific error in both decisions.
23. I have considered the decisions in particular that of the TCAB. I agree with the adjudicator that the evidence was not credible. I do not find any error of law or procedure in both decisions. They are reasonable.
Conclusion
24. This case is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 25th day of March 2021
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 25 March 2021
Ahmad Ashfaq
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 25 March 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9159/17/11/170/P1800
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2310/17
(Formerly RBCZ 11397/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] For the offence of theft, he was sentenced to imprisonment for 2 weeks suspended for 12 months. For the illegal remaining offence, it was adjourned pending the result of his non-refoulement claim.
[2] Decision of the TCAB, §§27—55. Decision of the Director, §§5—7.
[3] A congregation hall for Shia commemoration ceremonies.
[4] He wanted to accommodate 800-1200 people. The Imam Bargah was about 8000 sq. ft.
[5] Decision of the Director, §§11—31.
[6] Decision of the TCAB, §§ 56—59.
[7] He explained to the adjudicator that no one had asked about it and he forgot to tell his lawyer when compiling the NCF.
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