Rana Shahid Khan v. Torture Claims Appeal Board and Another

HCAL 2378/2018

[2021] HKCFI 3777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2378 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 40-year-old national of Pakistan who entered Hong Kong illegally on 14 June 2008 and was arrested by police on 18 June 2008 and for which he was subsequently convicted and sentenced to prison for 15 months.  Upon his discharge from prison and was referred to the Immigration Department for deportation, he then raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by some local Sunni Muslims due to a dispute over the construction of a mosque in his home village.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Shia Muslim in Village Lodhy, Tehsil Daska, District Sialkot, Punjab, Pakistan where the majority of the villagers were Sunni Muslims.  After leaving school he worked as a quality controller in a garment factory in his home district, and resided in the same home with his parents and siblings.

3.In about 2005 the Applicant’s family together with the other Shia Muslims in the village planned to build a mosque for their religious worship despite opposition from the majority Sunni Muslims from the village, and one day in March 2006 while the Applicant and some of his fellow Shia Muslims were working at the building site for their mosque, they were attacked by a group of Sunni Muslims with wooden sticks and iron rods that the Applicant suffered bruises and abrasions all over his body.

4.Upon returning home for medical treatments, the Applicant was arrested by police for some false charges made against him by the Sunni Muslims, and while being detained at the police station he was beaten by some policemen, and it was only after his family had paid a bribe a week later that he was released by the police, whereupon he fled to Lahore to take shelter in a relative’s home before moving on to a friend’s place in Rawalpindi, but later as he still feared of being located by those local Sunni Muslims from his home village, he decided to leave the country for his safety, and so in March 2007 he departed Pakistan 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 (“NCF”) on 20 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 28 November 2017 the Director of Immigration (“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”).

6.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 Muslims in his home village upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that his family had never received any further threats from any Sunni Muslims since their move away from the home village to Daska City is indicative of no further risk of harm from those local Sunni Muslims, that in any event that it was a local religious dispute within his home village without 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 204 million people 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 part of Pakistan away from his home district in large cities such as Karachi or to join his mother and some of his siblings in Daska City where they have safely made their home and where it would be difficult if not impossible for those local Sunni Muslims to locate him.

7.On 8 December 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 31 May 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 27 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found significant credibility concerns in the Applicant’s evidence as to his claim which were not supported by the relevant COI that it did not find the Applicant a witness of truth and was not satisfied that he had told the Board the truth in relation to critical aspects of his claims that it did not accept that he left his home country for Hong Kong in fear for his safety, or that he had suffered harm or threats of harm due to his religion while he was in Pakistan or that there is a real risk that he will be harmed under any of the proscribed forms of harm upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.     

9.On 29 October 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 the Director did not take into account the amount of discrimination and feud between the Shia and Sunni Muslims in Pakistan where Sunni is the mainstream religion with a lot of fundamental different values and principles between the two religions which neither the Director nor the Adjudicator took into consideration or questioned the Applicant in the process of screening his claim;

(2) that the Director merely took into account state protection and how there have been reforms in recent years to tackle police ineffectiveness and corruption which is factually not the case, and that the Director simply made the assessment based on the assumption that everyone is equal in Pakistan but in reality Shia Muslims are subject to a lot of discrimination of which the Director actually made no finding either to rebut the Applicant’s argument or to support his case which show that the Director was merely adopting a formula approach of assuming all Pakistani are treated equally within the Pakistani judicial system which is in fact not true;

(3) that the Applicant was never provided with any translation of the Director’s decision and other documents in English or any legal assistance for his appeal to the Board which is an unfair treatment of his case and is far from achieving high standards of fairness;

(4) that the Director wrongly exercised his case management power by using a biased and formula approach in coming to the conclusion that state protection would be available to the Applicant which is contradictory to the available COI of which the Director had not considered properly that such cherry-picking and biased approach is highly unfair and prejudiced; and

(5) that the decision of the Board has never been read or translated to the Applicant thereby depriving him of knowing the reasons behind the rejection of his claim and his right to make a full and proper application for judicial review of the Board’s decision which is simply unfair and unreasonable.  

10.While some of these arguments of the Applicant such as the historical conflicts between Shia and Sunni Muslims in Pakistan and with the minority Shias being subjected to sectarian violence by the majority Sunnis are factually accurate and corroborated by the relevant COI, the fact is that they are not applicable to the Applicant’s claim on the basis of his own case even at the highest which arose from a local dispute in his home village that once both he and his family had left and moved to other cities that there had been no further threats made against him or his family or of any risk of any kind elsewhere in the country that none of his complaints would in my judgment assist or advance his case any further, nor would they be reasonably arguable for his intended challenge against the findings of the Board.

11.As for his complaint of not being provided with translation of the documents or given any legal assistance for his appeal before the Board, the Court of Final Appeal has already held that neither the high standards 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 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.

12.As the Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation at his appeal hearing before the Board with the assistance of an interpreter and to answer questions put to him by the Adjudicator without difficulties, and while it is accepted that his first language is not English, many of the documents such as his NCF and the Director’s decision had in fact already been supplied to him earlier when he was still represented by lawyer from DLS, and that his NCF was prepared on his own instructions by his lawyer and should be well familiar to him, and that he never raised any issue about translation or interpretation at the hearing of his appeal before the Board, whereas in his present application, he clearly had legal assistance in the preparation of his application and supporting affirmation.  In the circumstances, and in the absence of any particulars or specifics to demonstrate that the basis of his claim had indeed been wrongly interpreted or misunderstood by the Board, I find this complaint of the Applicant merely speculative and without basis.     

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 fact is 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.

15.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.

16.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 15^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