Qasim Mairaj Din v. Torture Claims Appeal Board

HCAL 125/2019

[2021] HKCFI 3704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 125 of 2019

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 (counsel for) the Applicant in open court / the Applicant being absent 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 arrived in Hong Kong on 9 December 1999 as a visitor with permission to remain extended to 20 January 2000 when he did not depart and instead overstayed and was arrested by police on 24 January 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by some local Sunni Muslims over certain security dispute in his home district, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Lahore, Punjab, Pakistan as a Shia Muslim.  After leaving school he worked in a factory and joined a local religious group for Shia Muslims providing various religious services and activities, and his duty was to provide security during religious rituals in public places on voluntary basis.

3.One evening in 1998 while he was performing voluntary security duty at a Shia Mosque in Lahore, he stopped a group of seven Sunni males looking suspicious from entering the mosque which led to some argument with them, and on the following night while he was on his way home, he was attacked by the same group of men with wooden sticks and iron rods that he lost consciousness, and was later discovered by his siblings who carried him home for medical treatments to wounds on his body.

4.After the assault the Applicant reported the matter to the police but without any outcome, and two months later the Applicant was confronted by another group of Sunnis near his home who threatened him and pushed him around until some neighbours intervened.

5.Shortly after the incident the Applicant was arrested by police over some false charges brought by those Sunni Muslims against him, and was detained for interrogation during which he was beaten by a police officer, and was released only on the fourth day after his family had paid a bribe to the police.

6.Thereafter the Applicant felt it was no longer safe to remain in Pakistan, and so he fled to Islamabad, and on 5 November 1999 he departed for China, and from there he later travelled to Hong Kong where he overstayed, and upon his subsequent arrest by police some 8 years later in 2008, he raised a torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 31 October 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).  

7.By a Notice of Decision dated 13 May 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then remaining applicable grounds other than torture risk including 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found serious inconsistencies and discrepancies in his account  that the credibility of his claim is doubtful which is further undermined by his failure to raise it when he first arrived in Hong Kong until his arrest by the police 8 years later, that in any event that the level of risk of harm from those local Sunni Muslims upon his return to Pakistan is assessed as low due to the low intensity and frequency of past ill-treatment from them, 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 spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of away from his home district such as where it would be difficult if not impossible for them to locate him.

9.The Applicant never brought any appeal to the Torture Claims Appeal Board (“Board”) against that decision of the Director, who then on 28 October 2016 invited him to submit any 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”), and after receiving and considering further submissions from him via DLS, the Director by a Notice of Further Decision dated 24 January 2017 rejected the Applicant’s BOR 2 claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

10.On 3 February 2017 the Applicant lodged an appeal to the Board against this further decision of the Director, and for which he attended an oral hearing on 1 November 2018 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim and with submissions made on his behalf by his lawyer to the Board.  On 4 January 2019 his appeal was dismissed by the Board which also confirmed the further decision of the Director.

11.In its decision the Board considered the Applicant’s claim based on his alleged fear of harm from some Sunni Muslims in his home country detailed in his NCF and materials previously submitted for his claim before the Director under other applicable grounds including torture risk, BOR 3 risk and persecution risk as well as his evidence and submissions made at his appeal hearing before the Board on BOR 2 risk but found him evasive to many of the questions put to him that he was not considered to be a reliable witness and that his account was also found to be lacking particulars in relation to his assertion, that his dispute with that group of local Sunni Muslims in the mosque incident occurred more than 20 years ago that it is not accepted that there would still be any adverse interest in him by anyone after all these years of his departure from his country, that conflicts between Shia and Sunni Muslims in his country did not and would not give rise to deprivation of life in his case under BOR 2 risk, and that in any event with state/police protection available to him 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 under the BOR 2 ground.        

12.On 14 January 2019 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 of the same date he merely stated that he rejects the decision which disregarded his dangerous situation but without providing any details or particulars or elaboration as to how it did, nor did he request any oral hearing for his application.  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.

13.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.

14.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 19 – 26 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as submissions made by his lawyer on his behalf, 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.  

15.The fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim if true 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.                

16.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.

17.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 8^th day of December 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