AHMED ABDUL SHAKOOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1330/2018

[2020] HKCFI 452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1330 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 44-year-old national of Pakistan who entered Hong Kong illegallyon 19 January 2014 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by some of the Shia Muslims in his home village over religious disputes.  He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Village Abduper, District Mirpur, Azad Kashmir, Pakistan as a Sunni Muslim.  After leaving school he ran his own motor cycle repair shop in District Mirpur, got married and raised a family of three children in his home village.

3.  In his home village there were also Shia Muslims who frequently had conflicts with the Sunni Muslims over their religious beliefs.

4.  One day in September 2013, the Applicant with some of his Sunni friends were participating in a local possession when some of the Shias accused them of pushing other people in the possession, and started to assault them by punching and slapping them that the Applicant was knocked onto the ground and lost consciousness.  He was subsequently taken to the hospital for treatments.

5.  Upon his discharge from the hospital, the Applicant did not make any report to the police as the Shias were influential in the village.  Instead several weeks later when he ran into one of the attackers, the Applicant took revenge by punching him and striking him with a wooden club that fractured his left leg.  Seeing that the man was injured, the Applicant then fled from the scene.

6.  However, one morning in October 2013, those Shia Muslims took revenge against the Applicant when they ambushed him on his way to work and struck him with wooden sticks but the Applicant then took out a gun and shot and injured one of the attackers before fleeing from the scene.

7.  Upon returning home, the Applicant feared that those Shia Muslims would look for him in his home, he therefore fled to Islamabad to take shelter in a friend’s place, but when he later heard that those Shia Muslims had found out about his location in Islamabad, he felt it was no longer safe to remain in Pakistan, and so on 9 January 2014 he departed 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 26 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 15 December 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 Shia Muslims upon his return to Pakistan as low due to the absence or low intensity and frequency of past ill-treatment from them, that his problems with them were private personal disputes without 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 196 million people spread across a vast territory of more than 796,000 squarekilometers that it would not be unduly harsh for the Applicant as an able-bodied adult withwork experience to move to other area of Pakistan away from his home district in large cities such as Karachi, Lahore or Islamabad where he had stayed before without incidents and where it would be difficult if not impossible for those local Shia Muslims to locate him.

10.  By a Notice of Further Decision dated 15 February 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation for him to submit any additional document which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

11.  By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of whichwas filed on 28December 2015, and for which he attended an oral hearing on 1 March 2017before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 4 July 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board accepted the Applicant’s evidence of his disputes with some of the local Shia Muslims in his home village, but found that they were all just privatepersonal disputes without any political involvement and that his alleged ill-treatments did notattain the minimum level of severity that the Applicant failed to establish any well-founded fear that caused him to depart Pakistan, and that with state/police protection available to him that his claim for non-refoulement protection failed on all applicable grounds.

13.  On 9 July 2018 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) lack of legal representation in his appeal before the Board;

(2) lack of legal assistance for not providing him with any translation of his NCF to enable him to find out if the interpreter had translated the basis of his claim properly;

(3) that the Director had wrongfully determined the Applicant’s claim which the adjudicator failed to properly address the issues in his grounds of appeal;

(4) that the Director wrongly assessed the risk of harm to the Applicant as low due to availability of state protection which was however not available in Pakistan; and

(5) that the Director failed to properly consider the relevant COI in assessing the Applicant’s claim or to explain how to properly use the balancing exercise in the use of those COI in assessing his claim.    

14.  For his complaint in 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 standardsof 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 rightto 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.

15.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing beforethe Board and to answer questions put to him by the adjudicator without difficulty.  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.

16.  As for his complaint under Ground (2) of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board.  In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

17.  Regarding his complaint under Ground (3), it is just a broad assertion without any particulars or elaboration as to how the adjudicator failed to address his grounds of appeal in which he merely repeated his claim that his life was in danger in his home village as recorded in the Board’s decision ([7]), and of which the adjudicator did as noted above accept as claimed but that given the nature of the claim as personal disputes that he correctly found to have failed to establish any well-founded fear on the part of the Applicant to justify non-refoulement protection.

18.  As for his complaint under Ground (4) over the Board’s assessment of state protection in Pakistan, a close examination of those COI referred to in the Director’s decision on state protection and were in the hearing bundle before the Board and cited by the adjudicator, and given the adjudicator’s finding as to the nature of the Applicant’s alleged ill-treatments fromthose local Shia Muslims and of which the Applicant never sought the assistance of the police, I do not find any basis or merit in this complaint of the Applicant. 

19.  As for Ground (5) over the Board’s reliance of COI in its assessment of his claim,again the Applicant has failed to provide any particulars or specifics in support of this complaint, and upon examination of those COI referred to in paragraphs 14 – 18 of the decision of the Director as well as those considered by the Board, I do not find any basis in this complaint of the Applicant either.

20.  As has been repeatedly emphasized by the Court of Appeal, 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.

21.  In the Applicant’s case, as stated for the reasons given above, I do not find any of his complaints reasonably arguable for his intended challenge, and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant with sufficient particularity, I do not find any reasonably arguable basis to challenge the findings of the Director or the Board.

22.  Furthermore, the fact that it has been established by the Director in his 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, a decision also confirmed by the Board,there is simply no justification to afford him 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 Applicant’s claim.

24.  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