Zafar Iqbal v. Torture Claims Appeal Board

HCAL 1474/2019

[2023] HKCFI 2388

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1474 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 (counsel for) the Applicant in open court / the Applicant being absent 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 had previously entered Hong Kong illegally in 2006 and was subsequently repatriated to his home country on 1 November 2013, but some 5 months later on 13 April 2014 he sneaked back into Hong Kong, and on 12 May 2014 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Pakistan that he as a Shia Muslim would be harmed or killed by some local Wahabi Sunni Muslims in his home village over their religious disputes.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born in Village Bosal, Tehsil Malakwal, District Mandi, Bahauddin, Punjab, Pakistan and raised as a Shia Muslim but where the Shias in his home village had a long history of antagonistic relationship with the Wahabi Sunni Muslims over their religious disputes.

3.One day in 2006 while the Applicant and his fellow Shia Muslims were attending some religious activities, they were confronted by a group of Wahabi Sunni Muslims who demanded that they put an end to their activities which then led to a big quarrel followed by a gun fight between the 2 groups during which the Applicant was injured in his left thigh but managed to escape to take shelter in a relative’s place in Rawalpindi for several months, but when he later heard that those Wahabi Sunni Muslims were looking for him everywhere, he became fearful for his life and departed Pakistan in October 2007 for China, and from there he sneaked into Hong Kong where he was subsequently arrested and repatriated to Pakistan in November 2013.

4.Upon returning to his home village in Pakistan, the Applicant resumed his religious activities, but one day while he was worshipping with his fellow Shia Muslims, they were attacked by a group of Wahabi Sunni Muslims with guns and other weapons that one of his good friends was shot dead, but the Applicant managed to make his escape unharmed and took shelter in a friend’s place in a different village in Tehsil Malakwal.

5.Later when he heard that the Wahabi Sunni Muslims were looking for him everywhere, the Applicant felt it was no longer safe to remain in Pakistan, and so on 1 April 2014 he departed again for China, and from there he sneaked back into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 September 2017 with legal representation from the Duty Lawyer Service (“DLS”) but failed to complete his screening interview before an immigration officer due to alleged medical reasons. 

6.By a Notice of Decision dated 26 October 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”).

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 and substantial risk of him being harmed or killed by those local Wahabi Sunni Muslims upon his return to Pakistan, that there were no evidence of any real intention of those local Wahabi Sunni Muslims to seriously harm or kill him or of any reason for them to specifically target him for harm, 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 233 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 areas of the country away from his home district in large cities such as Rawalpindi where he has stayed before without incidents or Karachi where it would be difficult if not impossible for those local Wahabis Sunni Muslims 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 with his lawyer from DLS on 2 April 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer.  On 3 May 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found no reliable evidence of any real intention of those local Wahabi Sunni Muslims to seriously harm the Applicant or any reason to specifically target him for harm, and that in any event in the absence of any state or 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.

10.On 30 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation he cited all sorts of legal principles and put forth various numerous grounds for his intended challenge as follows:

(1)  No reasonable basis for rejecting the Applicant’s claim;

(2)  Failure to consider the extended form of state acquiescence;

(3)  Failure to fully consider all the relevant COI in assessing the Applicant’s claim;

(4)  Irregularity of the decision-maker being a different person than the interviewing officer;

(5)  Procedural impropriety/unfairness in failing to investigate into the COI of Pakistan;

(6)  Irrationality in failing to place weight on relevant COI and instead place weight on irrelevant information;

(7)  Irrationality in failing to consider that there is a consistent system of human right violations in Pakistan;

(8)  Irrationality in failing to consider if state protection exists in Pakistan;

(9)  Irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(10)  Procedural impropriety in failing to call for psychological and/or psychiatric reports or evaluations;

(11)  Procedural impropriety in applying the incorrect standard of proof; and

(12)  No proper basis for considering that internal relocation was available to the Applicant.

11.These are however all just some broad and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to consider the extended form of state acquiescence or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Adjudicator fail to give reasonable basis for rejecting the claim or fail to consider human rights violations in Pakistan, or why it was necessary or relevant to call for psychological or psychiatric evaluations for his claim.  As such I do not find any of his grounds reasonably arguable for his intended challenge, 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 merits in his intended application either.

12.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.

13.In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decision that the risk of harm in his claim if real 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.

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.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 21^st day of September 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