Abbas Muhammad Zaheer v. Torture Claims Appeal Board

HCAL 733/2021

[2023] HKCFI 1100

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 733 OF 2021

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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Pakistan who entered Hong Kong illegally on 13 February 2016 and was arrested by police on the same day. 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 some Shia Muslims over a personal dispute arising from a traffic accident. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in as a Sunni Muslim in Village Mohla Sargjjra, District Chakwal, Punjab, Paksitan. After leaving school he married his wife, and raised a family with 5 children working as a driver in his home village.

3.One day in October 2015 while driving his vehicle along a road from Rawalpindi to District Chakwal, the Applicant struck and killed one of the horses from a religious procession of the Shia Muslims which ran onto the road into the path of the Applicant’s vehicle, but which infuriated the Shia Muslims who were participating in the possession and tried to attack the Applicant who managed to reverse his vehicle and fled from the scene and went into hiding.

4.On the same evening a group of Shia Muslims came to his home looking for him but left when they were unable to find the Applicant in the house but not before they had threatened his father that they were going to kill the Applicant for causing the death of the horse used in their religious possession which they considered as sacred in their religion.

5.After those Shia Muslims left, the Applicant’s father warned him to stay away from his home village, and so the Applicant fled to Lahore, but when he was later informed by his father that those Shia Muslims had kept returning to threaten his family and were looking for him everywhere, and that his father and family were driven to move away to Rawalpindi, the Applicant felt it was no longer safe to remain in Pakistan, and so on 11 February 2016 he departed for China, and from there he later sneaked into Hong Kong, and his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 November 2018 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 23 January 2019 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by those local Shia Muslims upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him over some traffic accident, that the Applicant being a Sunni Muslim as the major population of the country while Shia Muslim is just a small minority and hence it is not accepted that those Shia Muslims would represent a major threat to the Applicant, that in any event 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 207 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 the country away from his home district in large cities with large population of Sunni Muslims such as Islamabad where it would be difficult if not impossible for any Shia Muslim to locate him.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 16 February 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 18 March 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found the Applicant’s claim to have been targeted for harm by those Shia Muslims for causing the death of their sacred horse during a religious procession to be untrue, incredible and implausible and which was not supported by the relevant COI about the situation regarding Shias and Sunnis in Pakistan or that Shia Muslims would regard horses used in their religious processions as sacred, and given that the Shias are in fact a minority group who have been regularly targeted with violence by the Sunni Muslims as the majority group of the country that the Board concluded of not being satisfied that the Applicant has established that there are substantial grounds for believing that he will face a real risk of being harmed as asserted upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

10.On 21 May 2021 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 or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, 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.

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 23 – 49 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.The fact is that it has also been established by the Director in his decision 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, 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.Furthermore, the Applicant recently filed an affirmation requesting to withdraw his application as all his problems in his home country have been resolved that he now wants to return home to Pakistan.

16.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no further problem for him to return to his home country, I accordingly dismiss his leave application.

Dated the 3^rd day of May 2023

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