Hassan Peerzada Murtaza and Others v. Torture Claims Appeal Board

HCAL 1858/2019

[2023] HKCFI 1395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1858 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 Applicants in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave for the 2^nd, 3^rd and 4^th Applicants to apply for judicial review refused.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 53-year-old national of Pakistan who had in the past on various occasions overstayed in or entered Hong Kong illegally and was invariably repatriated to his home country upon discharge from prison for such offences, again in early December 2007 entered Hong Kong illegally and was arrested by police on 14 December 2007, for which he was again convicted and sentenced to prison for 18 months, but on this occasion he raised a torture claim to the Immigration Department on the basis that if he returned to Pakistan he would be harmed or killed by certain fellow Sunni Muslims for fraternizing with the Shia Muslims in his home village and/or by the Muslim community for his subsequent religious conversion from Islam to Christianity.

2.Upon his subsequent discharge from prison and was released on recognizance pending the determination of his torture claim, A1 arranged for his wife, the 2^nd Applicant (“A2”) now aged 49, and their 4 children including younger daughter 3^rd Applicant (“A3”) now aged 22, and younger son 4^th Applicant (“A4”) now aged almost 18, all are also nationals of Pakistan to come to Hong Kong on 13 March 2012, and when they were refused entry by the Immigration Department, they also raised a torture claim on the same basis as A1’s claimed risks to him and his Family, and which was jointly assessed together with A1’s torture claim, and after their torture claims were rejected by the Immigration Department, A1 and his Family then jointly together sought non-refoulement protection on the same bases.

Factual Background

3.A1 was born and raised as a Sunni Muslim in Village Batapur, Lahore, Pakistan. He never received any formal education, and worked in various manual labour jobs including as an electrician and a driver in his home village.

4.In 1992 he married A2 who was also a Sunni Muslim, and raised a family with their 4 children including A3 and A4 who were all Sunni Muslims and attended the local schools in their home village.

5.Notwithstanding the historical religious conflicts between Sunni and Shia Muslims in Pakistan and their hostilities towards each other, A1 was able to get along well with the Shias in his home village, and in fact became good friends with some of them by joining in some of their religious meetings and activities, much to the disgusts of some of his fellow Sunnis in the village who accused him of fraternizing with the enemies, but A1 ignored their criticisms and just continued with his ways.

6.One day in 1994 after attending one such Shia prayer meeting in his home village with his Shia friends and was on his way home, A1 was confronted by several Sunni villagers who then pushed him into their van and took him to an unknown building and kept him in a dark room where they beat him and raped him in turn before releasing him with a warning not to tell anyone about what happened.

7.After the incident A1 became fearful for his life and stopped associating with his Shia friends, but as the harassments and intimidations from those Sunnis villagers had persisted, A1 therefore fled to other cities by himself, and later when his family also received similar threats and harassments, he arranged for A2 and their children to join him in neighboring Salamat Pura before moving on to other cities including Rawalpindi and Faisalabad.

8.In 1996 when he heard that those Sunni villagers had found out his whereabouts in Faisalabad, A1 and his family departed Pakistan for South Korea as visitors with permission to remain as such for 3 months, but after 2 months A2 with the children returned to Pakistan while A1 remained and subsequently overstayed in South Korea, during which he became interested in the religion of Christianity and attended the local church every week until 1998 when he was arrested and was repatriated back to Pakistan.

9.However, as the threats against him continued, A1 departed Pakistan again in late 1998 by himself for Russia and Finland but was later again repatriated to Pakistan where he then stayed in Karachi.

10.On 28 June 2000 A1 for the first time travelled to Hong Kong as a visitor and overstayed until 15 September 2001 when he tried to depart with a different passport but was arrested by the Immigration Department, for which he was subsequently convicted and sentenced to prison for 4 months, and was on 21 December 2001 repatriated to Pakistan.

11.Upon returning to Pakistan, as he was still concerned for his own safety and continued to move from town to town, but when he heard that those Sunni villagers were still looking for him everywhere, A1 therefore departed Pakistan again in early 2004 and again sneaked into Hong Kong in March or April 2003, and on 2 October 2003 he was arrested by police and was subsequently put in prison for 18 months, and on 8 October 2004 he was repatriated back to Pakistan.

12.He then moved with his family to Faisalabad into a friend’s place, but after an incident when he was shot at with guns by some unknown men whom he suspected were his Sunni enemies, he then fled to Rawalpindi.

13.One day in 2005 in Rawalpindi he was approached by some unknown men and was invited to carry out a jihad against the Shia Muslims by arming himself with a bomb to blow up one of their mosques, and when A1 refused, they beat him and took him to a Taliban’s camp in Peshawar where he was kept in a dark room for 10 days during which he was tortured and raped by numerous men before he eventually managed to make his escape and fled to Faisalabad.

14.In 2006 A1 travelled to Singapore and Malaysia to look for jobs but was unsuccessful, and so a few weeks later he returned to Pakistan to stay in Karachi, during which he was told by A2 that she was still receiving threatening phone calls from unknown men looking for him, A1 realized that his life was still at risk, and so he went to Islamabad, and in late 2007 he departed Pakistan for China where he stayed in Guangzhou for 3 months.

15.In early December 2007 he again sneaked into Hong Kong, and was arrested by police on 14 December 2007, for which he was again sentenced to prison for 18 months, during which he raised his torture claim to the Immigration Department, and after his discharge from prison and was released on recognizance pending the determination of his torture claim, he resumed interest in Christianity by participating in a local Bible study gathering of a Punjabi family in Hong Kong and regularly attended the Vine Church in Wanchai where he was subsequently baptized, and thereafter he continued to attend church and participated in its religious activities.

16.A1 subsequently informed A2 and children of his religious conversion, and asked them to keep it a secret from the Muslim community in Pakistan for fear of the repercussion of being harmed or killed by the Muslim community as it would be considered as a blasphemous act to convert one’s religion from Islam to Christianity in Pakistan.

17.However, the 2 brothers of A2 were in Hong Kong at the time and had heard about his conversion, and after they returned to Pakistan and informed the Muslim community, A2 started to receive threats and harassments from some of their relatives and neighbours, while their children were also bullied by their fellow Muslim students at school.

18.After A1 was informed by A2 of such threats to her and their children, and as he also feared that those Sunni villagers would still be looking for him and that they might also harm his family, he therefore arranged for A2 and their 4 children to leave Pakistan in early 2012 for Macau.

19.On 13 March 2012 A2 and their 4 children travelled from Macau to Hong Kong, and were refused entry by the Immigration Department and were returned to Macau, but 2 days later they again arrived from Macau, and when they were again refused entry, they then raised a torture claim with the Immigration Department, and were also released on recognizance pending the determination of their claim.

20.Given that they are all of the same family and that the bases of their torture claim were essentially the same premised on A1’s claim, their torture claims were jointly assessed and determined together, and were rejected by the Director of Immigration (“Director”) on 26 October 2012, and after their subsequent joint appeal to the Torture Claims Appeal Board (“Board”) was also dismissed on 29 November 2012, A1 and his Family then sought non-refoulement protection on the same basis, for which they completed a Supplementary Claim Form (“SCF”) on 17 February 2016 and attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

Director’s Decision

21.By a Notice of Decision dated 28 July 2017 the Director of Immigration (“Director”) rejected the claims of A1 and his Family on all the remaining applicable grounds other than torture risk including risk of their 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”).

22.In his decision the Director took into account of all the relevant circumstances of the claims of A1 and his Family and assessed the level of risk of harm from those Sunni Muslims in his home village for his fraternization with Shia Muslims and/or the Muslim community over his religious conversion upon their return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there was no reliable evidence of any real intention of any of them to seriously harm or kill him or his Family, that it was not accepted that after all these years since A1 last left the country in 2007 that there would still be any adverse interest from anyone in him or his Family, that in any event these were private personal disputes between them without any official involvement that state or police protection would be available to A1 and his Family 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 200 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with his Family to other part of the country away from his home district in large cities such as Karachi where there are congregated Christian population and community and where it would be difficult if not impossible for anyone to locate him or his Family.

Joint Appeal to Appeal Board

23.On 4 August 2017 A1 and A2 lodged an appeal for themselves and their younger children A3 and A4 to the Torture Claims Appeal Board (“Board”) against the Director’s decision, as their 2 elder children who were then already in their early 20s have since each married a local resident and proceeded with their claims separately from their parents and younger siblings. For their appeal A1 and A2 together with their 2 younger children attended 2 oral hearings on 6 November 2018 and 15 January 2019 before the Board with legal representation from DLS during which both A1 and A2 gave evidence and answered questions raised of their claim by the Adjudicator for the Board, while their 2 elder children also gave evidence as their witnesses as well as with submissions made on their behalf by their counsel. On 10 May 2019 their appeal was dismissed by the Board which also confirmed the Director’s decision.

24.In its decision the Board found the evidence of both A1 and A2 vague, inconsistent, confused and contradictory that it doubted the credibility of their claimed fear of harm from the local Sunni Muslims or the Muslim community due to the alleged acts of A1 that caused them to leave their country to come to Hong Kong, which was further undermined by A1’s failure to raise his claim despite having arrived in Hong Kong on various previous occasions until his last entry in 2007 and only after his arrest by the police that it concluded that A1 and A2 were unreliable witnesses who had fabricated embellished and exaggerated their evidence that it rejected their claims of A1 ever been subjected to adverse attention from those local Sunni Muslims in his home village in Lahore or any person or group anywhere else in Pakistan for reasons of his association friendship or involvement with Shia Muslims in his home village in the late 1980s or any other time or that he is or ever has been a genuine believer of Christianity or the Christian religion or that he is a genuine Christian that he or his Family has ever been subjected to any threats or harm from his family or the Muslim community or anyone in Pakistan for religious reason or otherwise that their claims were considered not credible and that they had been fabricated to create a claim for protection that their application for non-refoulement protection failed on all applicable grounds.

Joint Application for Judicial Review

25.On 3 July 2019 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s affirmation of the same date, he just attached a copy of the decision and stated that he is not satisfied with the decision without providing any details or particulars or elaboration as to why he is so.

A1’s Withdrawal

26.Shortly before the scheduled hearing of their leave application, A1 filed another affirmation and stated as follows:

“I want to remove my name from the family case because my name was clear from the case now. I decided to go back to my country which is why I would like to remove my name from the case. Thank you for your concern.”

27.At the hearing of the application, A1 confirmed that his claimed problems in Pakistan have already been resolved and hence he wants to withdraw his leave application for himself only as it is now safe for him to return to his home country, and that he is fully aware of the consequences of his withdrawal which include the end of all his legal proceedings and the possibility of a quick deportation from Hong Kong. Accordingly I acceded to his request and dismissed his leave application.

Application of A2, A3 and A4

28.As for the application of the remaining Applicants, A2 confirmed for herself and her 2 younger children that notwithstanding A1’s withdrawal that they still feared of those risks as stated before in their claim, and that they had nothing further to add. As such and as noted above that in the absence of any reasonably arguable ground being put forward by them or of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by A2, A3 or A4, I do not find any reasonably arguable basis for their intended challenge.

29.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.

30.In the Applicants’ case, the Board rejected their claim essentially on its adverse finding on the credibility of both A1 and A2 for what is in my judgment a most thorough and detailed analysis and reasoning as set out in paragraphs 140 – 205 of its decision with the benefit of hearing both of them in their oral evidence and answers to numerous questions raised of their claims as well as written and oral submissions from their counsel from DLS, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.

31.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicants’ claims if true is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Pakistan and to join A1 in wherever he is going to make his home where he claimed to have no further risk, and a decision also confirmed by the Board, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

32.In the premises, and having considered the decision 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 Applicants’ claims.

33.I should also note that A4, who was born on 24 August 2005 and hence still a minor albeit with just a few more months before reaching the age of 18, has not been legally represented in these proceedings as required by Order 80 Rule 2 of the Rules of the High Court, which thus raises the question of the Court’s proper approach to his application in the circumstances when his parents’ applications for leave to judicially review the Board’s decision have been found to be without merit, and which was considered by the Court of Appeal (Lam VP, Barma and Au JJA) in Fabio Arlyn Timogan v Evan Ruth, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971, which held that non-refoulement claims by children even if based on the same set of primary facts of their parents’ claims should be separately considered and examined whether their claims had been properly assessed and determined by the Board in a manner sufficiently to meet high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in their appeals before the Board having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

34.In the present case of A4, and for that matter of his parents and siblings as well in their appeal before the Board, it is of note that he was represented by counsel from DLS throughout the entire appeal process to the Board including at the 2 oral hearings when arguments and submissions were made on their behalves including A4 before the Board, and as such I am unable to see any other underlying matter which might support any specific non-refoulement grounds that had not been advanced on his behalf by his counsel to the Board given the facts as noted above that he was born and raised in his home country, that he attended school in Pakistan and speaks the local language, and like the rest of his family was a Sunni Muslim prior to his departure of his country, and as such and in the absence of any evidence of any risk of harm which might have directed against him in the past, I am unable to see any other underlying matter which might be specific to his situation that would support any specific non-refoulement ground that had not been advanced on his behalf by his counsel to the Board, and am therefore of the view that A4’s non-refoulement claim had also been properly dealt with by the Board.

35.Accordingly, I shall therefore treat the absence of legal representation for A4 in these proceedings as a mere irregularity as it would not in my judgment serve any useful purpose for him to be so represented given the lack of merits in his intended judicial review.

36.In the premises, and for all the given reasons I am not satisfied that there is any prospect of success in the intended application of A2, A3 and A4 for judicial review, and accordingly refuse their leave application.

Dated the 23^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