ALI MUJAHID v. TORTURE CLAIMS APPEAL BOARD

HCAL 728/2018

[2021] HKCFI 923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 728 of 2018

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 36-year-old national of Pakistan who entered Hong Kong illegally on 29 August 2012 and was arrested by police on 22 November 2012. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by the Muslim community for spreading the Ahmadiyya beliefs, and after his torture claim was rejected, he then raised a non-refoulement claim for protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Sunni Muslim in Village Budha Rajada, Wazirabad, Gujranwala, Pakistan. After leaving school he worked as a machine operator before joining the Pakistani army in 2006, during which he was posted to Lahore where he was deployed as a driver under the command of an army major including driving the major’s children to and from school.

3.  In 2007 he made friends with some people of the Ahmadiyya Muslim Community who have a different interpretation of Islam, during which he started to become interested in books on Ahmadiyya which he also lent to the major’s daughter to read, but when it was discovered by her father, the Applicant was placed in detention by the soldiers under the major’s command for trying to convert the Islamic religion of the major’s children to Ahmadiyya, during which he was beaten with wooden sticks until he lost consciousness and was then dumped by the roadside.

4.  After the Applicant regained consciousness and returned to his home for medical treatment, he heard that he had been kicked out of the army after being branded as a traitor of Islam, and that the local Islamic leader had issued an order that he should be killed, and so his father arranged for him to flee to Karachi to take shelter in his friend’s place, and from there he later departed Pakistan on 7 August 2011 for China where he stayed for a year before sneaking into Hong Kong in August 2012, and upon his arrest by the police, he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 28 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  While being released on recognizance, the Applicant was again arrested by police on 15 November 2016 for using a forged identity card and undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 18 months.      

6.  By a Notice of Decision dated 29 September 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds except his torture risk including 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 risk of him being harmed or killed as claimed upon his return to Pakistan due to the absence of or low intensity and frequency of past ill-treatment from his perceived enemies, that there is no reliable evidence that the Applicant had converted to the Ahmadiyya beliefs or that any Islamic leaders or groups were pursuing after him prior to his departure of Pakistan, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, that reliable and objective Country of Origin Information (“COI”) show that there are more than 4 million Ahmadis living in Pakistan as a minority religious group entitled to protection of the government and the law against persecution, and that there are reasonable internal relocation alternatives available within Pakistan with a large population of 204 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 Islamabad where it would be difficult if not impossible for his perceived enemies to locate him.

8.  On 10 October 2017 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 13 February 2018 before the Board with legal representation from DLS during which he gave evidence and answered questions put to him by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 20 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found the Applicant’s evidence as to his claim evasive, dishonest and unreliable that it is not accepted that there would be any harm from the army or the Islam communities or groups over his religious belief, that COI do not show general violence against Ahmadis in Pakistan, and that in any event state/police protection would be available to the Applicant if needed upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.    

10.  On 26 April 2018 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, and in his supporting affirmation of the same date he merely repeated his claim that his life would be in danger in Pakistan and that he cannot risk going back there without putting forward any proper grounds for his intended challenge, nor did he request any oral hearing for his application. As such I do not find any reasonably arguable basis 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 5.1 – 5.15 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 is 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