SUFYAN MAZHAR v. TORTURE CLAIMS APPEAL BOARD

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 / the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 30-year-old national of Pakistan who entered Hong Kong illegally on 14 August 2019 and was arrested by police more than 4 months later on 22 December 2019. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by his family, relatives and friends over their religious dispute.  

2.  The Applicant was born into a Sunni Muslim family in Jalapur Jattan, Gujrat, Punjab, Pakistan. After leaving school he worked as a vegetable vendor in his home district to make his living.

3.  In 2015 he started to watch lectures given by a Shia scholar on television and gradually became interested in the Shia faith, and in 2017 he converted his religion into the Shia faith against his family’s wishes, and as a result his parents and other members of his family were furious at him which led to numerous heated arguments between them, and on one occasion in the late 2017 his father hit him with a metal pipe that he suffered cuts and bruises all over his body which required medical treatments in a local hospital.

4.  For the following months his family kept demanding him to re-convert his religion back to the Sunni faith but which he resisted, and on one occasion his father again attacked him with a heated metal pipe, and then drove him out of the house, whereupon he took shelter in a friend’s place in Gujrat City, during which he became fearful for his safety after witnessing on television violent attacks by the Sunni Muslims on Shia Muslims all over the country.        

5.  Later in 2018 when he heard that his family and relatives had found out his whereabouts in Gujrat and were on their way to kill him, the Applicant fled to Quetta and then Karachi, but in early 2019 he was located by his father and other members of the family who again beat him with bare hands, and although he managed to escape without serious injuries, he felt that it was no longer safe to remain in Pakistan, and so on 1 August 2019 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 January 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 25 March 2020 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 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”).

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 chance of him facing any real and personal risk of being harmed or killed by his family or relatives or friends upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of any of them to seriously harm or kill him other than angry words and empty threats, that in any event it was a private religious dispute between them only without 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 233 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 young adult with working experience to move to other areas of the country away from his home district in large cities such as Lahore or Hyderabad with large population of Shia Muslims and where it would be difficult if not impossible for anyone to locate him.

8.  On 6 April 2020 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 2 July 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 28 July 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his family or relatives or friends over his alleged conversion of his religion from Sunni Muslim to Shia Muslim that caused him to leave his country to come to Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until more than 4 months later and only after his arrest by the police, that even if his such account of events prior to his departure of Pakistan were true that there was no reliable evidence of any real intention of any of his perceived enemies to seriously harm or kill him other than angry words and empty threats, and that in any event it was a private religious dispute between him and his family relatives and friends only without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation alternatives for him to move safely to other parts of the country with large Shia population 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 26 August 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just repeated his claim as before but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such, and in the absence of any error of law or irrationality 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 for his intended challenge of the Board’s decision.

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 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 is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of Pakistan with large population of Shia Muslims, 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 all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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