Iqbal Parvaiz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 915/2018

[2019] HKCFI 2291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 915 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 52-year-old national of Pakistan who entered Hong Kong illegally on 18 November 2014 and surrendered to the Immigration Department on 27 November 2014 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his wife’s brother over their religious dispute and/or by the police for the resultant shooting incident.  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 Chak Mughlani, District Mirpur, Azad Jammu and Kashmir, Pakistan.  After leaving school he worked as a farmer in his family’s land in his home village.

3.In 1988 the applicant met his present wife who was a Salafi Muslim, a different sect of Islam with their own separate mosques, schools and customs and who would only marry within their own sect.  When the applicant decided to marry his wife, he therefore converted to be a Salafi Muslim, and in the following year he married his wife and raised their children as Salafi Muslims as well.

4.However, in 2011 the applicant decided to convert back to Sunni Muslim, and while his wife did not raise any objection, her family in particular her brother Yasir became resentful and hostile towards the applicant.

5.One day in April 2014 when the applicant ran into Yasir and his friends, Yasir started to insult the applicant over his religious conversion, and when their dispute escalated into a scuffle, the applicant pulled out a gun and shot Yasir in his leg before fleeing from the scene.

6.Fearing that he would be arrested by the police for the shooting, the applicant therefore fled to Lahore and took shelter at his friend’s place, but when he heard that Yasir had vowed to take revenge against him and that the police were also looking for him for the shooting incident, the applicant departed Pakistan on 28 May 2014 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection,for which he completed a Non-refoulement Claim Form on 10 September 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.While being released on recognizance pending determination of his claim, the applicant was arrested by police on 8 December 2015 for taking employment without permission, and for which he was subsequently convicted and sentenced to prison for 15 months. 

8.By a Notice of Decision dated 20 April 2017 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 and 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”).

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 Yasir upon his return to Pakistan as low due to the absence or low intensity and frequency of past ill-treatment from him, that there was no reliable evidence that the applicant was pursued by the police as he was able to leave the country without 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 201 million people spread across a vast territory of more than 770,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other area of Pakistan away from his home district in large cities such as Lahore or Islamabad where it would be difficult if not impossible for Yasir to locate him.

10.On 27 April 2017 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended two oral hearings on 7 February 2018 and 3 May 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 16 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found exaggeration, uncertainty and untruthfulness in the centrepiece of the applicant’s claim that it was not accepted that the alleged shooting incident ever occurred or that he would be at risk of being subjected to proscribed harm in the future, and that even if it is true that he indeed faces such risk in his home district that it would not be unreasonable for him to relocate to other parts of Pakistan without facing any undue hardship, and concluded that his claim for non-refoulement protection failed on all applicable grounds.

12.On 24 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 in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) that he was not provided legal representation for his appeal before the Board;

(2) that the Director and the Board failed to take proper or sufficient consideration of his supporting documentary evidence before rejecting his claim; and

(3) that the Director and the Board failed to give any reason for rejecting his claim.   

13.For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14,Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14.The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

15.Regarding his complaint under Ground (2), it is just a broad and vague assertion of the applicant without any particulars or specifics or elaborations as to how the Director or the Board failed to take into consideration his documentary evidence, which included a letter allegedly written by Yasir containing death threats against the applicant, a First Information Report (“FIR”) allegedly made to the police against the applicant for the shooting, and two medical reports in respect of Yasir, which were either produced before the Director and already considered by him in his decision [36], or before the Board and considered by the adjudicator in the Board’s decision ([5] – [7]) where all of which were upon careful and detailed analysis either rejected as unauthentic or found to be unrelated to the applicant’s claim (see [41] – [57] of the Board’s decision), and in the absence of any error of law or procedure in the process being clearly identified by the applicant, I do not find any basis or merit in this complaint of the applicant.

16.As for his complaint under Ground (3) that the Director and the Board failed to give their reasons for rejecting his claim, it is clearly factually incorrect for him to say so,as it is plain from their decisions that both the Director (see [44] – [69] of his decision) and the Board (see [38] – [76] of its decision) did exactly that with full details of their analysis and reasoning.  As such there is simply no basis in this complaint of the applicant.

17.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.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,and in the absence of any error of law or procedural unfairness being clearly and properly identified by the applicant, I am unable to find any reasonably arguable basis to challenge the finding of the Board.  

19.Furthermore, the fact that it has been established by both the Director and the Board in their decisions 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 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.

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 20^th day of September 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