Ali Rizwan v. Torture Claims Appeal Board

HCAL 9/2022

[2023] HKCFI 1708

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 9 OF 2022

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 27-year-old national of Pakistan who entered Hong Kong illegally on 10 September 2020 and was arrested by police on 15 September 2020. 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 as a Shia Muslim would be harmed or killed by some local Sunni Muslims in his home village over their religious dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Shia Muslim in Tehsil & District Nankana, Punjab Province, Pakistan. After leaving school he worked as a shopkeeper in his home village, and together with his fellow Shias regularly worshipped in the village mosque.

3.In October 2016 the Applicant organized a religious seminar in his home village for Shia Muslims, and several weeks thereafter some Sunni villagers came to his home demanding him to stop organizing the same religious activities again or else they warned that there would be serious consequences.

4.The Applicant just ignored their warning and later in the same year organized another religious gathering for the Shias in the village, but they were then confronted by the Sunni Muslims trying to stop the gathering which then broke into a fist fight between the 2 groups.

5.On the following day some Sunni villagers came to the Applicant’s house and warned him again of serious consequences if he were to continue with such activities.

6.However, the Applicant continued to ignore their warnings and in September 2018 organized another religious gathering for the Shia villagers, again it descended into a violent confrontation between the Shias and the Sunnis.

7.Several months thereafter in December 2018 the Applicant was ambushed and attacked by a group of Sunnis on the street with wooden sticks that he suffered cuts and bruises all over his body that he was subsequently taken to the hospital for treatments.

8.After the attack the Applicant became fearful for his safety, and so he fled from his home village to take shelter in his uncle’s place in Morkunda Town in District Sheikupura, but one day in April 2019 when someone fired a gun shot at him in the local market but missed, the Applicant felt it was no longer safe to remain in Pakistan, and so on 16 September 2019 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 7 June 2021 and attended screening interview before the Immigration Department with legal representation.             

9.By a Notice of Decision dated 23 August 2021 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”).

10.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 substantial risk of him being harmed or killed by those local Sunni Muslims upon his return to Pakistan 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 of 225 million people spread across a vast territory of more than 770,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Karachi where it would be difficult if not impossible for anyone to locate him.

11.On 30 August 2021 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 29 October 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 10 December 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.In its decision the Board accepted the Applicant’s claim of religious disputes with some local Sunni Muslims in his home village but found no evidence of any real intention of them to seriously harm or kill him, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other areas of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

13.On 5 January 2022 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 without putting forward any proper ground to challenge the findings of the Board, 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.

14.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.

15.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim 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.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.Furthermore, the Applicant has recently filed an affirmation requesting to withdraw his application as his problem has been resolved and that he wants to return to his home country.  

18.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 problem returning to his home country, I accordingly dismiss his leave application.

Dated the 30^th day of June 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