Ahmad Hafiz Zulifqar v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 329/2018

[2019] HKCFI 260

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 329 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 48-year-old national of Pakistan who arrived in Hong Kong on 13 September 2014 with permission to remain as a visitor up to 27 September 2014 when he did not depart and instead overstayed until his arrest by the police on 29 October 2015.  After he was referred to the Immigration Department for investigation, he lodged a non‑refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his former employer for failing to repay his company’s money which he claimed to have been robbed by others.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Kalia, Tehsil, District Shekhupura, Pakistan. After leaving school he got married, started working as a sales officer in a trading company IBL Company in 2002, and became a supporter of the political party Pakistan Tehrek Insaf (“PTI”) in 2011.

3.One day in December 2013 when the applicant was on his way to the bank to deposit 3 million Pakistan rupees of his company’s money, he was robbed by several men at gun point when he was punched and knocked onto the ground and his bag containing the money was snatched by those men who then fled the scene on their motorcycles (“First Incident”).

4.After the robbery the applicant returned to his company and reported it to his immediate superior Shahid who was the branch manager and a member of rival political party Pakistan Muslim League-Nawaz (“PMLN”) who had always tried to persuade the applicant to join his party. Upon hearing what happened to the money Shahid however did not believe the applicant and demanded that he should return the money, and when the applicant made a report to the police, he was told that they could not do anything as he had no other witness to the robbery.

5.After receiving medical treatment at the local hospital and taking several days off to rest, the applicant then returned to work, but he was warned by Shahid that if he still failed to join his party and to return the money, he would be killed.  As the applicant believed that Shahid was using his loss of the company’s money as an excuse to force him to join his political party, he decided to remain at home without returning to work again, but still Shahid would continue to make threatening phone calls to him at home almost every day for the repay of the money.

6.One day in January 2014 while the applicant was riding his motorcycle with two friends Yasin and Riaz to the market, he saw Shahid holding a pistol with two other men on the road gesturing him to stop, and when he just rode past them, Shahid fired a shot at him but instead hit Riaz who was sitting behind the applicant and fell off the bike, and later when he heard from another friend Naeem that Riaz had died from the gunshot wound, he became fearful for his own life and fled to Islamabad to take shelter in the home of another friend Nadeem who supported him during his stay (“Second Incident”).

7.He stayed in Islamabad for nine months without further incidents, but when he heard from his family that police had come to his home looking for him as he suspected that Shahid had made a report of the stolen 3 million rupees, and that some unknown men with guns were also looking for him, and when they could not find him at home they fired shots at his house, the applicant decided that it was no longer safe for him to remain in Pakistan, and so on 12 September 2014 he departed for Hong Kong where he overstayed for more than one year until his arrest by the police when he raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 2 March 2016 and attended screening interview before the Immigration Department with legal representation from Duty Lawyer Service.

8.By a Notice of Decision dated 8 August 2016 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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”).

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 Shahid upon his return to Pakistan as low due to the absence or low intensity and frequency of past ill-treatment from him or his family, that it was a private money dispute between them 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 more than 199 million people spread across a vast territory that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of Pakistan away from his home district in large cities such as Lahore or Islamabad where he had stayed for more than nine months in the past without incidents, and where it would be difficult if not impossible for Shahid to locate him.

10.By a Notice of Further Decision dated 17 July 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts 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 Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which he filed on 19 August 2016, and for which he attended an oral hearing on 29 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 14 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board found a number of inconsistencies in the applicant’s account which caused doubts about his credibility and plausibility of his claim, but accepted that he had lost 3 million Pakistan rupees, that Shahid was claiming the money from him and that the police were also investigating the matter of which both were in the circumstances right to do, but rejected his claim that Shahid had intended to inflict harm on him in the shooting incident or the death of Riaz as it was only the applicant’s bare assertion, that there were no reliable evidence to suggest that he was unwilling to return to Pakistan because of any well-founded fear for any Convention grounds, and that in any event it is open to him to relocate elsewhere in Pakistan in one of the large cities like Islamabad or Lahore that it would not be unduly harsh for him in his circumstances to do so.   

13.On 2 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward the following grounds as amended on 24 September 2018 for his intended challenge:

(1) that the adjudicator failed to give adequate reason for finding inconsistencies in his claim;

(2) that the adjudicator’s such finding of inconsistencies was irrational as there were in fact no inconsistencies in his claim;

(3) that the adjudicator placed undue weight in irrelevant or peripheral details in the assessment of the applicant’s credibility;

(4) that the adjudicator failed to conduct an evidence-based assessment of his evidence; and

(5) that the adjudicator made mistake of fact in relation to the “Second Incident” of his claim.  

14.Grounds (1) and (2) both refer to the applicant’s complaints over the Board’s findings of inconsistencies and hence can be considered together.  Those findings are set out under the subtitle of “Credibility of the Appellant and Assessment of His Evidence” and in paragraphs 55 – 64 of the decision as follows:

“ 55. There are a number of inconsistencies which have created doubts about the credibility and plausibility of the Appellant’s claim.

56. Although the Appellant described Shahid as being totally unreasonable,the Board finds that this is objectively not the case. Shahid’s suspicion was not totally unreasonable, the police also refused to accept the Appellant’s case about the robbery as he had no witness. The Appellant had no proof of the robbery apart from his bare assertion. Although Shahid threatened the Appellant at the office and made calls to him, he did not go to his home immediately after the Appellant was hurt, but gave him some time to resolve the matter privately. He did not harm the Appellant when he was in town. It was only after Shahid found out that the Appellant had absconded that he went to the Appellant’s house to look for him.

57. Shahid’s behavior displayed no intention to cause serious harm to the Appellant or kill him. As regards the First Incident, Shahid’s threat (assuming he said so) that he was powerful and could ‘do anything’ to the Appellant was vague and did not contain any specific threat. Shahid never harmed the Appellant physically. As regards the Second Incident involving Shahid’s alleged shooting of Riaz, there was no evidence of it apart from the Appellant’s bare assertion based on hearsay evidence of another person. The Appellant never contacted Riaz’ family or found out if any report was made to the police. The Appellant’s statement that if he reported the Second Incident to the police, the police would side with the government supporters, frame him and deny the testimony of the eye witness are all speculative. There is insufficient evidence to conclude that Riaz is dead or that Shahid had killed Riaz.

58. The Board heard that Shahid did not cause physical harm to the Appellant’s family in his absence or seriously threatened them in order to find the Appellant’s whereabouts. Shahid either did not look for, or did not find, the Appellant in Islamabad. The Appellant’s fear that Shahid would eventually find him in a huge city of Islamabad is purely speculative. During the Appellant’s absence, his wife and children have safely relocated to a refuge in an education institute. Shahid did the proper thing in the circumstances, which was to report the matter and leave the investigations to the police.

59. The Appellant felt victimized and showed no remorse for having lost the large sum of money of IBL that he was responsible for depositing with the bank. Firstly, he felt no obligation to account for the lost money and expected others to bear the total loss. Then, he contradicted himself when asked whether he offered to pay back the money by instalment or salary deduction, because he said he had offered it but Shahid turned it down. No reasonable explanation was given as to why Shahid would reject an offer to repay part of the money. More importantly, the Appellant failed to mention any repayment option before. The Board does not find his evidence in this respect trustworthy or credible.

60. The Appellant’s political affiliation are ambiguous. His role with PTI was limited to asking people to attend campaign rallies, and he had no position in the party and was not a member. He was not able to provide information about the PTI to show that he understood or supported its mission and objectives. It was difficulty to see why for someone would make huge personal sacrifices to the extent of having to leave Pakistan for sake of remaining with PTI of which he was not a member, and of whose policies he did not know.

61. The Appellant stated that Shahid asked him to join PMLN and return the money, or otherwise he would be killed. The Appellant was not able to articulate the rationale for linking the repayment of money to the demand to join PMLN.

62. The Appellant did not owe any loyalty or affection to Shahid and his other friends. On the other hand, he claims that he was loyal to PTI and refused to join PMLN despite the huge personal sacrifices he made. Apparently he had very loyal friends, Riaz died because of him, Yasim did not betray him, and Nadeem paid for everything during a nine month stay in Islamabad as well as his travel arrangements to leave Pakistan as a fugitive with no assurance of returning and repaying the debt, and all because Nadeem had a good salary in a computer shop in Islamabad. The portrayal of the Appellant’s character and role in the events is inconsistent on the whole, and cast doubt about his credibility.

…

64. The Appellant arrived in Hong Kong in September 2014 and was arrested in 2015.  He did not make any non-refoulement claim until 24 November 2015 when a removal order was made against him.  The delay in the claim, together with the circumstances described above, casts doubt on the genuineness of the claim.”    

15.Whilst it is unnecessary and unfortunate for the adjudicator to make those comments about the applicant showing no remorse for losing his employer’s money, or for her to compare his lack of loyalty or affection towards Shahid with those shown by his friends towards him, none of which were helpful or relevant to her assessment of the applicant’s claim or his credibility, she was however entitled to find, on the basis of the evidence before her including the applicant’s testimony and answers given at the oral hearing, that there were inconsistencies in his assertions of Shahid using his loss of the money as an excuse to demand that he joined his political party, or that Shahid’s behavior displayed no intention of causing any serious harm to the applicant all the time while he was in Pakistan, the combination of which had created doubts about the credibility and plausibility of his claim of fear of being killed by Shahid that drove him to come to Hong Kong for non-refoulement protection.  In the premises I do not consider these grounds reasonably arguable for his intended challenge.    

16.As for Ground (3) in which the applicant argues that the adjudicator took into account irrelevant or peripheral details in assessing his credibility in paragraphs 56 – 65 of her decision, the criticism of which I already acknowledged and dealt with above.  For similar reasons the applicant’s submission that the adjudicator’s assessment of how he “felt”being closely linked to her subjective perception of his demeanor as unreliable and even dangerous guide to credibility does not in my view advance his case any further given the adjudicator’s correct findings of inconsistencies in his assertions based on other evidence referred to above.

17.For his Ground (4), the applicant argues that the adjudicator failed to conduct an evidence-based assessment of his claim by relying on speculation and assumptions when she stated in paragraph 73 that:

“ The Board rejects all of the Applicant’s claims about the Second Incident and the harm that Shahid had inflicted (or intends to inflict) on him in Pakistan. There is no evidence about Riaz’s death apart from the Applicant’s bare assertion.”

and in paragraph 74 that:

“ The Board finds the Appellant is being investigated by the Pakistan police for the loss of 3,000,000 Pakistan Rupees and is wanted as a fugitive from justice, not a fugitive from injustice.”

of which the applicant submits as being based on the adjudicator’s intuitive assumptions as to how Shahid and the applicant’s friends would have acted in the circumstances, as well as how he should have reacted to the robbery and his motivation for fleeing.   

18.The applicant’s case regarding the Second Incident was in fact recorded by the adjudicator in paragraph 10 of her decision as follows:

“ The Appellant also referred to another incident in January 2014. The Appellant and his friends, Riaz and Yasin, were travelling on the street and were allegedly attacked by Shahid and some people who were standing afar, and Shahid shot Riaz (the Second Incident). The Appellant said that Shahid had gestured him to stop and pointed a gun at him, but missed him and shot Riaz instead as he was sitting at the back of the motorbike. Fearing he would be arrested, the Appellant did not stop to help Riaz who had fallen off the motorbike, but he escaped and later met another friend, Naeem, whom he asked to go and check Riaz’s condition. Naeem told him that Riaz had died from the gunshot. Hearing that, the Appellant went to Yasun’s house, parked his motorcycle there and headed off to Islamabad by bus, where he stayed with another friend Nadeem. The Appellant was not hurt in the incident.”

19.Base on such evidence from the applicant, and in assessing his credibility the adjudicator was entitled to find, as she did in paragraph 57 above, that it was insufficient for her to accept hearsay information from Naeem to conclude that Riaz is dead when there was no report ever made to the police or any documentary evidence of his death.  As such I do not find any basis for the applicant to argue that her assessment was not evidence based.      

20.As for the Board’s finding that the applicant was being investigated by the Pakistani police over the loss of the money and that he was a fugitive of justice, again it was based on his own case as recorded in paragraph 19 of the decision:

“ The Appellant was told by his family that the police had visited his home for crime investigation of a money issue with Shahid and he did not want to go back to Pakistan to face an investigation. He believed that if he was found by the police, they would certainly frame him. Although he and Shahid had been colleagues for 12 years, the Appellant did not think there was a way to make up the relationship with Shahid. Because of this, the Appellant claimed that his life would be in danger if refouled to Pakistan.”

21.Clearly on the basis of such evidence from the applicant, the adjudicator was entitled to make the observation that he was running away from police investigation and hence a fugitive.  Again I do not see how this ground can be reasonably arguable by the applicant in his application.   

22.As for his Ground (5) in which the applicant argues that the adjudicator had made a mistake as to fact in relation to the “Second Incident”, as already noted above, it is clear that the adjudicator correctly recorded the applicant’s case regarding the Second Incident that Riaz was shot while sitting behind the applicant in his motorbike and hence in his presence as alleged, but that the applicant only heard about Riaz’s death from his friend Naeem and hence it was correctly regarded as “hearsay evidence of another person”,  all of which the adjudicator was entitled to evaluate together with her observation of the applicant’s demeanor at the hearing in her assessment of his credibility, and as such I do not find any material error as to fact on her part in her consideration of his claim.

23.As has been repeatedly emphasized by the Court of Appeal, 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 the 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 Re Litoun Mounsy [2018] HKCA 537.

24.Furthermore, the fact that it has been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

25.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.

26.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.

Dated the 29^th day of March 2019.

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