ABBAS SHEIKH ANSAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2110/2018

[2020] HKCFI 2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2110 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 40-year-old national of Pakistan who entered Hong Kong illegally in November 2014 and was arrested by police on 28 December 2014. 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 local Sunni Muslims in his home district and/or by the Taliban terrorists due to sectarian violence between Shia and Sunni Muslims.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Mohallah Sajjadia, Dhudial Tehsil and District Chakwal, Punjab, Pakistan as a Shia Muslim.  After leaving school he worked as a driver, got married and raised a family of three children in his home town populated by both Shia and Sunni Muslims in equal numbers where there were sectarian tensions between the two sects.

3.  On one occasion in May 2011 while the local Shias were holding a celebration and parade, and when they were passing through the Sunni sector of the town, they were attacked by a group of Sunni residents with sticks and other weapons during which the Applicant suffered cuts and bruises on his limbs and body that he was subsequently taken to the local hospital for treatments.

4.  The tension eventually subsided after elders from both Shia and Sunni met to settle their dispute and reached reconciliation.  However, when the Applicant continued to receiving phone calls from unknown strangers claiming to be the Taliban terrorist group and threatened to kill him for insulting the Sunni by trespassing into their neighbourhood during the Shia parade, he therefore fled Pakistan for China in January 2012 before returning a week later without returning to his home town and instead moving from place to place in Mandra, Rawalpindi and Chakwal, but as he continued to receive threatening phone calls from strangers claiming to be the Taliban, he again departed Pakistan on 7 September 2012 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 20 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 12 January 2018 the Director of Immigration (“the 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 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local Sunni Muslims or the Taliban upon his return to as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence that he had indeed been threatened by the Taliban other than his own speculation, nor is there any evidence that he had been specifically targeted by those local Sunni Muslims in his home town, that in the absence of any official involvement that state or police 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 201 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 part of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for his perceived enemies to locate him.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 20 June 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 26 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found a number of significant inconsistencies and discrepancies between the Applicant’s claims made to the Director and his oral evidence to the Board regarding his experiences in Pakistan including assault by the Sunni Muslims during the parade in his home town and the subsequent alleged threats from strangers claimed to be the Taliban that it did not accept his claim as credible or that he was a witness of truth or that he would face any real or substantial risk in the foreseeable future from Sunni Muslims or the Taliban upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.  

9.  On 3 October 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 put forward the following grounds for his intended challenge:

(1) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’ s case which led to an unfair outcome of rejecting his non-refoulement claim;

(2) that the adjudicator failed to make sufficient enquiries before finalizing the determination of his claim;

(3) that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(4) that the Director failed to take into account that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies for which the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5) that the Director failed to consider or give sufficient weight to those evidence from the listed COI which supported the Applicant’s aversions that the police in his country would not be able to protect;

(6) that the Director referred to those COI which suited his pre-conceived conclusion which was a clear case of unfair attitude by the Director which is in itself enough to render his decision void;

(7) that the Director failed to attain high standard of fairness required by the Wednesbury test in his decision which should be considered unreasonable in the scope of public law; and

(8) that the Director failed to take into account that corruption and incompetency of the administration in his country is still a very serious problem as various human rights organizations have complied reports which stated testament to the Applicant’s assertions.  

10.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way was state acquiescence relevant to his claim, or how did the Director or the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to make sufficient enquiries or to apply high standard in assessing his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.  As such I do not find any of them reasonably arguable for his intended challenge.

11.  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.

12.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 41 – 56 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

13.  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.   

14.  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.

15.  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