Salah Uddin v. Torture Claims Appeal Board

HCAL 1041/2018

[2021] HKCFI 1447

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1041 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 57 -year-old national of Pakistan who arrived in Hong Kong on 22 October 2002 with permission to remain as a visitor up to 5 November 2002 when he did not depart and instead overstayed, and on 6 June 2007 he was arrested by the police for the crime of handling stolen goods and for which he was subsequently convicted and sentenced to prison for 32 months, and upon his discharge and was transferred to the Immigration Department for deportation, he then raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by a group of Shia Muslims for being a police witness to a shooting incident in a local mosque committed by those Shia Muslims against Sunni Muslims due to their religious conflicts. 

2.The Applicant was born and raised as a Sunni Muslim in a village in Lahore, Pakistan. After leaving school he operated a garage near the village Bazaar in which a mosque was located where the local Sunni Muslims gathered to pray.

3.One evening in 2001 the Applicant witnessed a shooting incident in the mosque in which some Sunni Muslims were shot and killed by a group of Shia Muslims, some of whom he recognized as his local villagers, and of which he informed the police and gave a witness statement.

4.However, two weeks later he received a phone call from an unknown man who threatened that he would be killed for giving the witness statement to the police, and several days later he was abducted by several armed men to a secret place in Rawalpindi where he was beaten until he lost consciousness, but a few days later he managed to make his escape in the middle of the night when those men were not around, and fled to a train station where he contacted his friend who told him that the prosecutor of the case of the shooting incident as well as some police witnesses had been killed by Shia Muslims and warned him to leave Pakistan to save his own life.  

5.The Applicant therefore departed Pakistan in August 2002 for China, and from there he later travelled to Hong Kong where he overstayed, and upon his subsequent arrest by the police for the offence of handling stolen goods and after his discharge from prison for the offence, he then raised his non-refoulement claim, for which he completed a Supplementary Claim Form (“SCF”) on 20 November 2014 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 18 September 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then 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 Ordinance, Cap 383 (“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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those Shia Muslims upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that they would still have any adverse interest in him after all these years, that the criminal investigation of the shooting incident would have by now been concluded one way of the other and hence no reason for anyone to look for the Applicant, that in any event state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows that reasonable internal relocation alternatives are available in Pakistan with a large population of 200 million people with the majority as 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 working experience to move to other parts of Pakistan away from his home district in places with large Sunni populations where it would be difficult if not impossible for him to be located.

8.By a Notice of Further Decision dated 15 December 2016 the Director again rejected the Applicant’s claim in the absence of any additional facts from him 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”).

9.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 30 September 2015, and for which he attended 2 oral hearings on 7 October 2016 and 24 February 2017 before the Board with his lawyer from DLS during which he gave evidence and answered questions put to him by the Adjudicator for the Board and with submissions made by his lawyer on his behalf. On 21 May 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of being threatened by Shia Muslims over the shooting incident and that even if true that after all these years it is doubtful that anyone would still have any adverse interest in him over something that occurred some 20 years ago, that in any event with state/police protection available upon his return to Pakistan as well as reasonable internal relocation for him to safely move to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.   

11.On 8 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation as well as at the hearing of his application that he merely repeated his claim as before that his life would still be in danger in his home country that he cannot go back but without putting forward any proper ground for his intended challenge. As such and in the absence of any error of law or irrationality 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 for his intended challenge.

12.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.

13.In the Applicant’s case, 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 his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.     

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 21^st day of May 2021.

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