Ahmed Mian Shahzad v. Wesley Wong, The Adjudicator of theNon-refoulement Claims Petition Office and Another

HCAL 801/2018

[2019] HKCFI 1792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 801 of 2018

BETWEEN

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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 41-year-old national of Pakistan who last entered Hong Kong illegally sometime in early 2016 and was arrested by police on 28 March 2016.  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 the Shia Muslims in his home town in various disputes including over the use of a street in his neighbourhood and/or by the police for being involved in a shooting incident in which a Shia Muslim was killed.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised as a Sunni Muslim in Yousaf Town, Faisalabad, Punjab, Pakistan.  After leaving school he worked in textile business and lived in his family home in his home town in Yousaf, and had come into various conflicts with the Shia Muslims in the neighbourhood.

3.In 2000 during the sacred Islamic Month, the Shia Muslims would march with a horse in possession through the street where the applicant and his family lived as well as other Sunni Muslims causing great disturbances to their prayers, and in the following year when the Shia Muslims ignored their warnings and from the police, and insisted again in marching through the same street, and when the applicant and other Sunni Muslims confronted them, one of the Shia Muslims slashed the applicant on the face with a knife, and when the Sunni Muslims started throwing stones and firing gunshots back at the Shia Muslims, it led to a big brawl between them that ended with dozens from both sides injured and taken to the hospital including the applicant for his face injury.

4.Afterwards and at the instigation of the police, the applicant together with some of his fellow Sunni Muslims met up with the leaders of the Shia Muslims and agreed to reach a truce, but when he was leaving after the meeting, he was invited by some of the Shia Muslims to join their sect, but when he refused, they warned him that it would not be the end of their conflicts.

5.One day in 2002 while he was on his way to a gathering of Sunni Muslims in Shahkot, the applicant was ambushed by the same group of Shia Muslims who drove by and shot at him with their pistols but missed, and when some of the Sunni Muslims who were with the applicant returned fire with their guns, the Shia Muslims then sped away.

6.However later when the applicant heard that one of the Shia Muslims had been shot during the incident and later died from his wound, and that the police were looking for him for investigation after the Shia Muslims had blamed him for the shooting, the applicant therefore hid in Shahkot instead of returning home, but when he was told by his family that the same group of Shia Muslims had come to his home looking for him for revenge, the applicant departed Pakistan in June 2002 for Hong Kong where he overstayed and was subsequently arrested by police and sentenced to six weeks’ imprisonment before being repatriated to Pakistan in August 2004.

7.Upon returning to Pakistan the applicant continued to participate in Sunni Muslims’ gathering and activities, but after a bomb blast during such a gathering in Rawalpindi in 2005 that caused death and injuries to many participants, the applicant made a report to the police that it was the Shia Muslims who were responsible for the blast, and as a result he received threats from the Shia Muslims that they would take revenge against him.

8.On another occasion towards the end of 2005 when the Sunni Muslims held another gathering in Lahore during which some Shia Muslims fired shots into the crowd which caused the Sunni Muslims to return fire resulting in many injuries.  On this occasions both sides made reports to the police, and after the applicant was named in the complaints by the Shia Muslims and when he heard that the police were looking for him for questioning, the applicant went into hiding in Lahore for three years until he heard that the Shia Muslims had found out about him hiding in Lahore, he then fled to Multan to stay at a friend’s place for two years before moving again to Karachi where he stayed in another friend’s place for five years without incidents.

9.One day in about late 2015 in Karachi he ran into the same group of Shia Muslims who had threatened him before, he was attacked by them with an iron rod on his head and was cut in his leg with a knife that he lost consciousness before someone intervened and brought him to the hospital.

10.After his discharge from the hospital and when he heard that the same group of Shia Muslims was still looking for him, the applicant departed Pakistan again in early 2016 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 11 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

11.By a Notice of Decision dated 21 November 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights (“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”).

12.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that there would be any real and substantial risk of him being harmed or killed by the group of Shia Muslims and/or by the Pakistani police upon his return to Pakistan due to the absence or low intensity and frequency of past ill-treatment from them for some 10 years in various places in Pakistan without any encounters with the Shia Muslims other than the single incident in Lahore, that there was no reliable evidence that such ill-treatment had attained the minimum level of severity under any of the applicable grounds, that there was also no reliable evidence that the applicant was being pursued by the police given the fact that he was able to leave the country twice without any problem, 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 199 million people with the majority being Sunni Muslims 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 work 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 those Shia Muslims to locate him.

13.The applicant then filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 2 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 26 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

14.In its decision the Board found from the evidence and answers given by the applicant in his appeal hearing that he came to Hong Kong only after losing his passport and the fact that he did not make any claim upon arrival until after he was arrested by the police undermined the credibility of his claim, that he had lived in various places in Pakistan for more than 10 years before departing without any incident saved for that one single incident in Lahore in which he was found to have exaggerated the alleged assault and his injury, and that in any event state protection and reasonable internal relocation option are available that it would not be unduly harsh for him to move safely to other parts of Pakistan to avoid those Shia Muslims that his non-refoulement claim failed on all applicable grounds.

15.On 7 May 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 examine or give sufficient weight to the extended concept of state acquiescence;

(2)  that the Director failed to take into account that inaction of government officials can effectively hold the state liable when they fail to provide reasonable protection to its citizens against risk of torture;

(3)  that the Director failed to take such argument into account or to give sufficient weight in such argument when reaching his decision;

(4)  that the Director wrongly relied on different sources of information to conclude that reforms are on-going in Pakistan which were mere speculation;

(5)  that the Director failed to recognize that corruption and incompetency of the Pakistani police are still extremely serious;

(6)  that the Board failed to make sufficient enquiry before finalizing its decision such as finding that the applicant’s injuries were not serious without advising him to obtain medical reports or evidence from Pakistan before deciding the seriousness of the injuries sustained by him; and

(7)  that the Board failed to call for medical reports before deciding whether actions of violence were severe enough to be qualified as torture.  

16.These are however all very 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 the decision, or what relevancy was the extended concept of state acquiescence to his claim, in what way did the Director fail to take into account relevant COI as to reforms in Pakistan or the corruption and incompetency of its police, or why it was necessary or relevant to call for medical report in his case, or in what way did the Director or the adjudicator fail to make proper or sufficient enquiry before finalizing their decisions.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and given the fact that Sunni Muslims constitute the majority of the population in Pakistan and without any evidence of official involvement, I fail to see why the concept of state acquiescence would be relevant to his case, nor do I find any of his grounds reasonably arguable for his intended application.

17.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 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.

18.As noted above, the applicant did not clearly or properly identify any error of law or procedural unfairness in the Board’s decision, and in the absence of which I do not find any reasonably arguable basis to challenge the finding of the Board.

19.Furthermore, the fact is 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.

20.In the premises and having proceeded to consider 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.

21.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 2^nd day of August 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