Hassan Zaib v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 556/2019

[2022] HKCFI 693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 556 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 the Applicant in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.This is the Applicant’s application for leave by Form 86 to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 28 November 2017 (the “Notice”) and the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 21 February 2019 (the “Decision”).  The Applicant has not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

2.The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. For the benefit of the Applicant, the Court treated his complaints against the Director as directed at the Board also.  

3.The applicant allegedly sneaked into Hong Kong from the Mainland on 22 October 2014.  He was arrested by the police on 4 November 2014 and referred to the Immigration Department.  Then, he lodged a claim for a non-refoulement protection.

4.In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4] and BOR 2 Risk[5].  His claims were rejected by the Director’s Notice.  His appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision. He now seeks judicial review of that Decision. 

The Applicant’s case

5.The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form which was prepared by him with assistance of the Duty Lawyer Service.  In gist, his claim is that if refouled to Pakistan he will be tortured or killed by Azhar Ali (“Azhar”), a Sunnis leader, because of their religious differences.

6.The Applicant is a Pakistani national, single and now aged 29.  He is a Shia Muslim converted from the Sunni faith by his father.  He was the only Shia family in Machora village and he used to go to the Shia mosque situated in between Machora and the neighbouring village, Ghot Gulam Ali.

7.Azhar had long been a religious leader of the Sunnis and the head of the leaders in the village.  He is a close friend of Dr Shezra Mansab (“Mansab”) who is a member of the Pakistan Muslim League (N) (“PML(N)”) and member of the National Assembly for the constituency in which they lived.  Because of that connection, the Applicant believed Azhar is very powerful and influential.

8.The Applicant’s problem began in mid-2012 when Azhar prevented him from practising his religion.  One day when he was on his way to the Shia mosque, he was intercepted by three or four of Azhar’s men who told him to stop going to that Shia mosque.  The Applicant refused.

9.About 10 days later, when the Applicant was approaching the Shia mosque, Azhar and eight to ten men approached him.  Azhar held the Applicant’s collar and threatened that if he did not stop going to that Shia mosque, they know how to make him stop.  Then Azhar and his men left.

10.A month later, Azhar and ten people broke into his home and damaged his property.  They assaulted him until he fell unconscious.  His family members were also threatened to stop the Applicant attending the Shia mosque.  The Applicant was treated by a doctor and took a month to recover.

11.The next day, the Applicant went to the Syed Wala police station to report the attack by Azhar. But the police disbelieved him and said that they would not conduct any investigation.  The Applicant lost faith in the police and left for Lahore where he stayed with his friend, Khadam Gilani (“Gilani”) for more than two years. 

12.While in Lahore, Applicant’s friend, Shalid Lqbal, told him that his family had been expelled by Azhar.  After that, Gilani also told the Applicant that Azhar knew his whereabouts and would come to Lahore to seek him out.  Gilani took him to another hiding place to stay until Azhar left Lahore.  Then, at the suggestion of Gilani and with his assistance, the Applicant left Pakistan for China.

13.While in China, he was told by his friend that Azhar had closed down the Shia mosque he used to go to and was enquiring his whereabouts.  Hence, the Applicant believed his life would be in great danger if he returns to Pakistan.  At the screening interview, he told the immigration officer that about two weeks before the interview, ie around the end of September or beginning of October 2017, he learned that Gilani was killed by Azhar for having given him assistance.

14.The Applicant did not believe that internal relocation was a viable option because Azhar had a strong network across the country and could track him down. 

The finding of the Board

15.The Board considered the internal consistency of the Applicant’s case by testing it against his oral testimony and written statements; and the external credibility of his case by testing the consistency of his claim against objective and reliable Country of Origin Information (“COI”) and generally known facts about Pakistan and other evidence.  The Applicant’s account is made up of bare assertions and he provided no objective proof.  The only part of his claim that could be verified related to his assertion about Azhad’s connection to Dr Mansab.  The Applicant was well-versed on information relating to Dr Mansab after 2017, but was wrong about information relating to her in 2012. 

16.Based on the COI, the Board accepted that Pakistan has issues with sectarian violence and that minorities have been targeted.  On the other hand, Sunni and Shia communities have a long history of communal living and that this continues in many cities and towns.  Assuming in the Applicant’s favour that there was a threat against him in Machora, it came only from a local man whom the Applicant has never claimed to be part of a larger organisation.  But Machora is a village of 1,817 people in a country with a population of over 200 million.

17.The Board had some doubts about the Applicant’s credibility.  It found that the most the Applicant could prove was threats followed by an attack at his home resulting in a minor wound that required bandaging and medicine despite the attackers were armed. The Board did not accept that Azhad had pursued the Applicant to Lahore with intention of killing him.  The Board found it inherently improbable that having driven the Shias and the Applicant’s family out of Machora and closed the Shia mosque, that Azhad had any compelling reason to travel to Lahore to seek out the Applicant.  As there was no suggestion that the other Shias were targeted for murder, the Board found it inherently improbable that Azhad would have murdered Gilani.  Having considered the COI, the Board also found that internal relocation was a viable option to avoid the risks, if they were real. 

18.In respect of Torture Risk, the Bound found there is no evidence of a real chance that the Applicant would be killed, harmed or tortured by or with the consent or acquiescence, active or passive, of a public official.  For the same reasons, the Board found that the Applicant has not established that he would face a genuine and substantial risk of being subjected to torture or cruel, inhuman, degrading treatment and punishment if refouled, which is necessary for proving his claim under Torture Risk ground.  In respect of BOR 2 Risk, the Board found no evidence showing that the Applicant has committed any criminal offence for which he would face capital punishment.  Hence, this risk is not engaged.  While accepting that the Applicant’s claim could come within the Persecution Risk ground, the Board did not accept his claim as credible.  For these reasons, the Board dismissed his appeal.

Grounds for judicial review

19.The Applicant did not put forward any specific grounds for his application in his Form 86.  In his supporting affirmation, he alleged that the Board had not taken his case into account and exhibited the Decision. He requested the Court to give relief on “humanity base” and invited the Court to look at his case.  He repeated his fears of religious persecution.  These grounds are essentially challenges against the finding of fact by the Board.

20.The Applicant was invited by the Court’s letter dated 13 December 2021 to file, inter alia, any submission which he would like to make.  He responded providing the other information but did not file any submission.

21.The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].  Thus, in the absence of specific grounds, in an application for judicial review the Court could only focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

22.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  This conclusion was further supported by availability of internal relocation.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere, save when such finding involved error of law, procedural unfairness and irrationality.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

23.For the above reasons, leave to apply for judicial review was refused.

Dated 25^th day of March 2022.

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

[1] [2018] HKCA 549

[2] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[4] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[6] [2018] HKCA 524 at para 14(1)