ZAHEER HAIDAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1031/2019

[2022] HKCFI 2240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1031 of 2019

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;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 8 April 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 23 June 2017 (the “Notice”). Though the Director is named as a proposed respondent, no relief is sought in respect of the Notice or any decision of the Director.  In his supporting affirmation the Applicant annexed a copy of the Decision of the Board, which he mistakenly alleged is the decision of the Director dated 8 April 2019.  Thus, it is manifestly obvious that the subject matter of his application is the Decision of the Board.

2.  The Applicant is a national of Pakistan, now aged 47.   He entered Hong Kong on 29 November 2014 illegally and was arrested by the police on 2 December 2014.  On 5 December 2014, he raised a non-refoulement claim.

3.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  By a Notice of Decision dated 23 June 2017, the Director rejected his claims under all four applicable grounds.

4.  He appealed to the Board against the decision of the Director in the Notice.  By its Decision dated 8 April 2019, the Board dismissed his appeal.  On 16 April 2019, he applied for leave to apply for judicial review of the Decision of the Board.  The Applicant did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.    In gist, he claimed that, if refouled back to Pakistan he will be killed by Sunni Muslims because of his conversion from being a Sunni Muslim to Shia Muslim and his refusal to re-convert back.

6.  The Applicant was born and raised in Thikriwala, Faisalabad, Pakistan.  He received education up to Class Six and has two years of work experience as a farmer.  His family used to reside in Pakistan.  At the material time, he and his family were Shia Muslims and they prayed together in a mosque of Shia Muslims.  In Thikriwala, the majority of the population was Sunni Muslims and the number of Shia Muslims was very small.  He estimated that there were about 300 Sunni Muslims households but only ten Shia Muslims households in his home village.

7.  A fellow villager, Afzaal and his son Bilal, both Sunni Muslims, threatened and attacked him because of their differences in religious beliefs.  One morning in September 2014, he encountered Afzaal, Bilal and another man called Nazim.  They asked him to stop taking part in Shia Muslims procession or they would attack him. He left without arguing with them.

8.  He encountered the same men again at around 11 am on the same day, this time they had a heated discussion.  They told him that the procession for Shia Muslims should not be organized and that he should not participate in the procession.  They were separated by some passers-by.

9.  He went to the mosque of Shia Muslims at around 2 pm on the same day.  There, he saw Afzaal, Bilal, Nazim and another man called Nana.   Bilal fired a shot in the air and Afzaal grabbed his shirt collar and slapped him.  Bilal tried to shoot him but was stopped by other people at the scene.  Afzaal threatened to kill him if he continued to take part in any religious activities of the Shia sect.  He did not sustain any injury.  That was his last encounter with Afzaal, Bilal, Nazim or Nana. 

10.  Fearing for his safety, the Applicant fled to Hong Kong to avoid Afzaal and his men.  While in Hong Kong, he learnt from his brother that Afzaal was looking for him and asked for his whereabouts in his home village.  His family converted to Sunni Muslims on 10 June 2017 as they were scared of Afzaal, Bilal and Nazim.

11.  He did not report the incident to the police because they were supporters of the ruling party, the Pakistan Muslim League (Nawaz) with which Afzaal and his men were associated.  He also claimed that the Pakistani police would only give help to people who pay bribes.  He claimed that internal relocation would not be viable because Sunni Muslims are everywhere in Pakistan.

The finding of the Board

12.  The Board noted many inconsistencies in his evidence, including notably the following:

(1)     The Applicant said in the NCF that he was single, but at the hearing he claimed to have been married and has a son and a daughter. He blamed the interpreter for this error, alleging that the interpreter was against him.  The Board dismissed his explanation as incredible.  It found that he gave misleading information in his NCF and told lies in his explanation to the Board which further damaged his credibility and the reliability of his evidence;

(2)     In his Notice of Appeal to the Board, the Applicant claimed to have formerly been a Sunni Muslim who later converted to become a Shia Muslim in around 2013.  At the hearing, he agreed with the Board’s suggestion that his conversion might have been later in August 2014. Whether he was converted in 2013 or 2014, it is inconsistent with his evidence before the Board that he among other Shiites were attacked and shot at by Sunni Muslims during the 2008/2009 demonstration because at the time he was on his own case a Sunni Muslim.  When confronted with this inconsistency, he said he could not remember when he became a Shiite.  Further, the 2008/2009 demonstration and the shooting were not mentioned in his NCF.  The Board could not attach any credence to his evidence about his conversion from being a Sunni Muslim to Shia Muslim and his refusal to re-convert back, which is the centrepiece of his case;

(3)     The Applicant testified that his decision to change to Shia Muslim was an important decision but made hastily.  He said he changed because of his Shiite friend who was a good person.  But he could not even remember the name of that friend.  Also, he could not explain the inherent contradiction why this important decision had to be made hastily;

(4)     The Board considered the Applicant’s reasons for conversion did not appear to have been motivated by any deep thought.  In the absence of a more nuanced reason for changing his faith, the Board found his evidence inherently implausible;

(5)     The Applicant said that something happened because they voted for Pakistan People’s Party and not Pakistan Muslim League (Nawaz) which won the election.  But when asked whether there was an election between August and October 2014, he replied that he did not know and it was possible that he did not remember; and

(6)     The Board held that his testimony before the Board about his three encounters with Afzaal and the others in September 2014 “[bore] no resemblance” to the encounters he described in the NCF.  The inconsistencies caused the Board to doubt if his evidence was fabricated.

13.  The Board found the Applicant not a credible witness.  It was not prepared to attach any credence to his evidence other than to the most basic information.  It found that the bulk of his evidence was not credible and that he failed to establish the centrepiece of his case.  Hence, it held that the Applicant had failed to discharge the burden of proving the factual basis in support of his claim to protection under any of the applicable grounds under the USM.

14.  The Board further held that even if his claims about Afzaal, Bilal and Nazim were accepted, the risk from them was of a “highly localized nature” and the Applicant could avoid the risk of harm by internal relocation to other areas in Pakistan.  The Board also noted from credible country of origin information (“COI”) that in most parts of Pakistan Sunni and Shia Muslims coexist peacefully.

The legal principles applicable to judicial review

15.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].  Thus, in the absence of specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

16.  The Applicant did not put forward any grounds in his Form 86.  In his supporting affirmation, he reiterated that the Decision was unreasonable and unfair and his life is in danger in Pakistan.  But he gave no particulars of the unreasonableness and unfairness alleged.  He had been invited by the Court via its letter dated 22 March 2022 to advise the Court of his first language, contact number and to file submissions.  He did not respond.  The letter was sent by post to his address as stated in his Form 86 filed on 16 April 2019.  It has not been returned through the post.  He had never informed the court of any change of address.  There is nothing to suggest that he had not received the letter or had moved.  

Discussion

17.  In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  Apart from a general and un-particularized complaint about unreasonableness and unfairness, the essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country, which, in effect, is a challenge of the Board’s finding of fact that he would not face any real harm or risk if returned to Pakistan.  

18.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  The Board rejected his evidence and found that he had failed to discharge the burden of proving the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. It also found in the alternative that even if his evidence were accepted, the risk which the Applicant would face would be localised and he could avoid that risk by relocating to other parts of Pakistan.  According to credible COI, Sunnis and Shiites co-exist peacefully in most parts of Pakistan.  This are finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere except where such finding involved errors of law, procedural unfairness and irrationality.  The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

19.  For the above reasons, leave to apply for judicial review was refused.

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