Sheikh Khurram Shahzad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 589/2022

[2023] HKCFI 2572

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 589 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 the Applicant being absent in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 4 October 2021 (the “Notice”) and the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 23 June 2022 (the “Decision”).  Both the Director and the Board are named as the proposed respondents.

2.The Decision of the Board is reviewable by judicial process but the decision of the Director in the Notice is not because there are established statutory procedures of appeal to the Board against that decision[1] and the Applicant had invoked those procedures.  The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[2]. The leave application as respects the Notice has no prospect of success and is refused.  The rest of this decision is related to the Board’s Decision.

3.The Applicant is a Pakistani national, now aged 38.  He was first arrested on 17 July 2013 for being an illegal immigrant.  He raised a non-refoulement claim on 19 July 2013, but withdrew it on 20 April 2015. He was repatriated to Pakistan on 20 May 2015.  On 9 October 2020, he was arrested again for illegally remaining in Hong Kong.  Again, he lodged a non-refoulement claim by way of written signification dated 14 October 2020.  

4.In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6].  By his Notice, the Director rejected the Applicant’s claims under all four applicable grounds.  He lodged an appeal to the Board against the decision of the Director in the Notice out of time.  Nevertheless, the Board accepted his late filing and convened an oral hearing.  By its Decision dated 23 June 2022, the Board dismissed his appeal.  Then, he made this leave application. 

5.Before his leave application was set down for hearing, the Registry received the Applicant’s letter requesting to withdraw his leave application because he wanted to go back to his home country (the “withdrawal application”).  On 1 September 2022, the Court gave him directions to file a statement stating that he understood the consequence if his leave application was withdrawn.  But on 5 September 2022, he filed an affirmation seeking to continue his leave application as he has life threat in his home country and did not wish to return.  By an order dated 8 September 2022, this Court refused his withdrawal application.

6.In view of his wavering stance, an oral hearing was scheduled for him.  Notice of hearing was sent to him at his last known address by post on 16 August 2023.  He did not appear.  The delivery service of Hong Kong Post is usually very reliable and punctual.  The notice of hearing had not been returned in the course of mail.  This Court was satisfied that the notice of hearing had been duly served on him and proceeded with determination of his leave application on paper.

The Applicant’s case

7.The following account of the Applicant’s case is mainly based on the information in thenon-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claimed, if refouled, he would be harmed or killed by his cousins because of (i) a religious dispute, ie his refusal to convert to Sunni faith from Shia faith and; (ii) a land dispute over a house which he claims to have 50% ownership.

8.The Applicant is married and has a child.  His wife and child are currently residing in Pakistan.  He had six years of formal education and about fourteen years of working experience in different businesses.  He belonged to a religion sect under Islam called Ahl-e-Sunnat (Sunni) by birth but was converted to Ahl-e-Tashee (Shia) in 2010.  Because of the conversion, his family members treated him as their enemy. 

9.In early 2012, his uncle, now deceased, attacked him and his friends with a knife and wooden sticks near his home (the “first attack”).  His left hand was cut and required stitches.  He was hospitalised and recovered after two and half months.  He did not report this matter to the police as he thought this was an internal family dispute.  In any event, he was fearful for his life.  Thus, he left Pakistan to come to Hong Kong.  

10.He withdrew his previous non-refoulement claim and returned to Pakistan in 2015 because his father had passed away and he wished to return to mourn for his death.  At that time, his mother told to him that his family members, including his uncle and cousins, had forgiven him and promised not to harm him.  However, this turned out to be untrue.

11.In December 2016, his two cousins and three to four of their friends met him in the street.  They demanded him to re-convert back to Sunni faith but he refused.  They beat him for about four to five minutes until several neighbours intervened (the “second attack”).  Later, his uncle and cousins told the Applicant’s mother that they would kill him if he did not re-convert back to Sunni Islam.

12.About two months later, while the Applicant was chatting with three Shia Muslims at his friend’s shop, his cousins and about eight others assaulted them (the “third attack”).  The fighting stopped when some neighbouring shopkeepers intervened.  He suffered head injuries and fell unconscious.  He was hospitalised for three days.  His friends also sustained injuries.  

13.The Applicant and his friends reported this incident to the police.  The police called both parties to the police station and told them to settle this matter otherwise the Applicant would also be arrested and charged.  The Applicant believed his uncle had caused the minister of the ruling party (Pakistan Tehreek-e-Insaf) with whom his uncle had a close relationship to exert influence on the police against the Applicant.  His uncle also threatened to kill the Applicant’s mother, wife and child, if he did not withdraw the complaint to the police.  Hence, he withdrew the complaint and settled with his cousin without receiving any compensation.

14.Then, the Applicant fled his home town and went to live with his friend in Mirpur City in the end of April 2017 for about six months.  He did not counter any problems there.  Then, he moved to Lahore where he lived for about two years working as a driver.  One day, he encountered his cousins and their friends.  He quickly drove away, but one of his cousins took out a pistol and fired at him, hitting his car twice (the “fourth attack”).  He managed to escape unharmed.  He did not report this matter to the police as he knew the police would side with his uncle.  Thus, he left Pakistan for Vietnam in September 2019.  He returned as he was unable to extend his visa in Vietnam. He was still scared and therefore, went to Mainland China.  From there, he sneaked into Hong Kong. 

15.He maintained contact with his mother and family twice a week.  He was told that his cousins continue to threaten to kill him but they had not hurt or harm his other family members.

16.The Applicant also claimed he had inherited one storey of a two-storey house in his home village from his father.  He said that his cousins threatened to kill him if he does not transfer the house to them.  His evidence about this claim is less detailed than that relating to his religious dispute.

The finding of the Board

17.The Applicant appeared before the Board but chose not to answer any questions.  He told the Board that he wanted to rely on the information in the hearing bundle.  The Board told him that it had queries about his claim and if he chose not to address those queries with the Board, it was unlikely that the Board would reverse the decision in the Notice.  The Applicant replied that he understood but still did not want to answer any question.  He insisted to rely on the information in the hearing bundle.  

18.Despite his refusal to answer, the Board accepted the entirety of the factual case as he asserted, except in respect of the identity of the shooter in the fourth attack[7]. While accepting that the Applicant’s car was hit, the Board considered that on the fact it was inherently improbable that the Applicant would happen to see his cousins after living in Lahore for two years, that he and his cousins would have identified each other while driving in their respective vehicles, and that his cousins would have shot at him in a public place.  Giving him all the benefits of doubt, the Board found it more likely than not that the Applicant was unintentionally caught in a random shooting by shooters other than his cousins.   

19.In relation to the religious dispute, the Board accepted that the Applicant will be at risk of harm from his cousins or people at their behest under the BOR 2 Risk, BOR 3 Risk and Persecution Risk grounds, but not Torture Risk ground.  His claim under the Torture Risk ground was not substantiated as his cousins or people at their behest are not public officials and according to authoritative and credible country of origin information (“COI”), there is no suggestion that the Pakistan authorities actively or passively acquiesced to harm against Shia Muslims.  On the contrary, the COI suggests that the Pakistani authorities take an active role in protecting Shia Muslims.

20.In relation to the land dispute, for the same reasons the Board reached a similar conclusion that the Applicant will be at risk of harm from his cousins or people at their behest under the BOR 2 Risk and BOR 3 Risk grounds, but not Torture Risk or Persecution Risk grounds.  His claim under the Persecution Risk ground was not substantiated because the land dispute is private in nature and the risk of harm arising from such a dispute does not fall within the protection under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, namely, race, religion, nationality, membership of a particular social group or political opinion.

21.The Board extensively reviewed the COI provided by the Director and the Applicant.  While the COI shows violence against Shia Muslims in Pakistan, such violence is concentrated in Quetta and Parachinar.  It also shows that Sunnis and Shias live together without significant conflicts in big cities, such as Lahore and Rawalpindi and Islamabad; and that the Pakistani authorities have taken steps to protect Shia Muslims from violence though less effectively against harassment and discrimination.  The Board was mindful of the Applicant’s emphasis that his fear related to his relatives.  But it also noted that he had lived without incident for two years in Lahore.  In view of the passage of time, the Board found it unlikely that his cousins would remain sufficiently motivated to look for him elsewhere in Pakistan beyond their hometown.  It also considered there is no real risk that his cousins would be aware of his return and where he would be relocated to and to actually locate him in such large urban centres.  The Board considered it would not be unreasonable or unduly harsh for him to relocate himself and his family to other big cities in Pakistan to avoid the risk of harm.  Therefore, the Board did not accept that the Applicant faces a real risk of proscribed harm from his cousins, other relatives, or others at their behest, or the Pakistan society generally, if he relocates to other big cities such as Islamabad, Rawalpindi or Lahore upon his refoulement.  Hence, it dismissed his appeal against the decision of the Director in the Notice.

Legal principles applicable to judicial review

22.The role 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.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[8].

Grounds for judicial review

23.The Applicant advanced the following four grounds of application in his supporting affirmation:

(1)  the Decision was unreasonable and unfair; the Board did not give him sufficient time and chance to arrange relevant evidence;

(2)  the Director failed to give proper weight to the presence of state acquiescence; and he was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles;

(3)  the Director failed to take such arguments or give enough weight to the COI supporting the Applicant’s “aversions that the police in his country would not be able to protect” into account; and

(4)  this was a clean case of unfair attitude shown by the Director; the corruption and incompetency of the administration in his country is still a very serious problem; and the Director failed to attain the high standard of fairness required by the Wednesbury test.

For the Applicant’s benefit, the Court treated his reference to the Director as including the Board as well. 

Ground (1) – Unreasonable and unfair

24.This ground is framed in what appeared to be a very long and heavily loaded paragraph, quoting article 28 of the Basic Law and article 2 of the Bill of Rights and mentioning right to life and the extra-judicial killing which he would face if returned to Pakistan.  These are high sounding principles and international obligations which Hong Kong honours to any asylum seeker whose life is at risk, provided he meets the criteria under any of the four applicable grounds under the USM.  The question is whether the Applicant met those criteria.  The Board was of the opinion that he did not.  That is a mixed finding of fact and law.  Insofar as finding of fact is concerned, it is exclusively within the province of the Board.  Except for the identity of the shooter in the fourth attack, the Board assessed his claims entirely on the basis of the factual case as he asserted.  The Applicant could have no valid complaint.  Insofar as application of law to the facts is concerned, this Court could find no error of law.  As for his complaint about unfairness and irrationality, the Court shall leave these issues to its overall scrutiny of the Board’s Decision when considering Ground (4).

25.As for the Applicant’s complaint that the Board did not give him sufficient time and chance to arrange the evidence, it is just a bare assertion which is contrary to the Applicant’s own conduct at the hearing.  If he considered he did not have sufficient time to arrange his evidence, he could have informed the Board or sought an adjournment at the hearing for him to do so; but he did not.  On the contrary, it was the Applicant who refused to answer the Board’s questions; repeatedly said that he wished to rely on the material in the hearing bundle; and repeatedly pressed the Board to make a decision on the basis of those material.  He must have considered his case ready for determination and the hearing bundle contained all the information and evidence he could obtain.  It lies very ill in his mouth to say he did not have sufficient time and chance to arrange the evidence.  This ground has no conviction at all.  Obviously, this ground was cloned from some other applications for judicial review.  It is wholly contradictory to the Applicant’s conduct at the hearing before the Board.

Grounds (2) – State acquiescence; torture at the behest of state law enforcement agencies 

26.The Applicant complained that the Director (or the Board in the present context) failed to give proper weight to the presence of state acquiescence and the fact that he was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles; and failed to take such argument into account.  The only torture or ill-treatment he ever received was from the four incidents which caused him little harm.  There was no evidence that state law enforcement agencies were involved in those incidents.  This ground is obviously copied from other applications for judicial review the facts of which have no bearing to the facts of this case.

Grounds (3) – Weighting on the COI 

27.The Applicant complained that the Director (or the Board in this context) failed to take such argument into account.  He did not identify what argument the Board had failed to take into account.  As for his complaint about the weighting given to the COI, it is directed at police ineffectiveness and/or corruption in giving him protection.  In essence, the Board found the Applicant may be at risk, but he could avoid that risk by internal relocation.  Thus, state or police protection is a non-issue.  The Board expressly held in Paragraph 85 of the Decision that it was unnecessary for it to make findings on the level of state protection the Applicant could receive from the Pakistani authorities.  In any event, the weight to be given to the COI is a finding of fact exclusively for the Board.  There is no substance in this ground. 

Ground (4) – Unfair attitude and breach of high standard of fairness

28.The Applicant argued that this was a clean case of unfair attitude shown by the Director (and the Board) and their breach of the high standard of fairness required by the Wednesbury test.  He did not give particulars of unfairness and breach of duty.  

29.As mentioned in Paragraphs 18 and 24 above, the Board accepted almost the entirety of the Applicant’s factual case as he asserted, except in respect of his identification of the shooters in the fourth attack.  He could have no complaint in respect of the Board’s acceptance of that part of his factual case.  As for the finding in relation to the identity of the shooters, it is a finding of fact solely within the realm of the Board which the Court in a judicial review may not interfere save for errors of law, procedural unfairness or irrationality in the finding.  As for the Board’s assessment of his entitlement to protection on the basis of the above finding, it is a mixed finding of fact and law.  The Court repeats its observation in Paragraph 24 above that it could detect no error of law in the Board’s assessment.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Court could not detect any evidence of procedural unfairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  It was on that basis that the Board found that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds.  The Decision is utterly without fault.  The Applicant’s grounds for judicial review are not reasonably arguable. 

Conclusion

30.Taking a global view of the Applicant’s case, the Applicant’s application for judicial review has no realistic prospect of success.  His leave application is therefore refused.

Dated 5^th day of October 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

[1] s37ZR of the Immigration Ordinance, Cap 115

[2] [2018] HKCA 549

[3] 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

[4] 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”)

[5] 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

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

[7] See Para 4

[8] [2018] HKCA 524 at [14(1)]