Mushtaq Ahmad v. Torture Claims Appeal Board and Another

HCAL 649/2018

[2020] HKCFI 2138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 649 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 56-year-old national of Pakistan who entered Hong Kong illegally on 25 October 2012 and was arrested by police on 22 December 2012.  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 local Sunni people for converting to Ahmadi faith which had been subjected to various forms of religious persecution and discrimination in Pakistan.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Sunni Muslim in Amar Sadhu, Lahore District, Punjab, Pakistan where he had worked various jobs, got married and raised a family of six children all of whom are now adults.

3.In 1998 under the influence of a school teacher who taught the Ahmadiyya sect of Islam in his home village, the Applicant eventually converted his religion to Ahmadi faith without undergoing any ceremony or ritual, but as the Sunni majority in his home district rejected Ahmadi as non-Muslim, the Applicant kept his conversion a secret from everybody including his own family.

4.However, somehow in about 2008 words about his religious conversion started to spread in the village that some of the villagers had accused him of betraying the Muslims and threatened him that there would be serious consequences, and which also led to a fierce altercation within his own family that one of his sons-in-law subsequently divorced his daughter.

5.Eventually the Applicant decided to leave Pakistan to avoid further threats and discriminations from those Sunni Muslims, and so in June 2010 he departed for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 13 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 17 May 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 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 assessed the level of risk of harm from those local Sunni people upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention on those Sunni people to harm or kill him, 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 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 those local Sunni people to locate him.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 11 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 10 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 alleged religious conversion vague, evasive and unconvincing, in particularly that his reasons for doing so too simplistic and unconvincing, that his knowledge of the Ahmadi faith completing lacking, and that his conversion to the Ahmadi faith without any particular ceremony or ritual contrary to reliable COI that it considered him not a witness of truth, and did not accept that he did convert from Sunni Muslim to the Ahmadi faith or that he had subsequently experienced threats or discrimination or any problems from his son-in-law or any Sunni Muslims or that he would face any form of harm upon his return to Pakistan that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.     

10.On 16 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, 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 still be in danger in Pakistan and that therefore he does not want to return to his home country in this situation but without putting forward any proper or valid ground for his intended application.  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 36 – 46 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 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.

Dated the 31^st day of August 2020. 

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