Wajid Syed Zakir v. Torture Claims Appeal Board

HCAL 757/2022

[2024] HKCFI 3089

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 757 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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 36-year-old national of Pakistan who entered Hong Kong illegally on 3 November 2015 and surrendered to the Immigration Department on 19 November 2015 when he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by certain local Sunni sectarian group known as Sipa-Sahaba over their religious disputes. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Shia Muslim in Raji-Pur, Talian Walla, Tehsil and District Jhelum, Pakistan. After leaving school he worked as a salesman in a medicine store in his home district, and together with his fellow Shia Muslims formed a local religious group for their own worshipping and other religious activities.

3.However, the Sunni Islamist Deobandi sectarian organization known as Sipa-Sahaba were hostile and aggressive towards the Shia Muslims, and on one occasion in July 2015 while the Applicant together with his fellow Shia Muslims were attending a religious activity marching on the streets in Talian Walla, they were confronted by a group of Sipa-Sahaba people, and when the Applicant and his fellow Shias refused their demand to stop the activities, they were attacked by those Sipa-Sahaba people with iron rods that the Applicant suffered cuts and bruises all over his body that he subsequently required medical treatments after the police had arrived to disperse the crowd.

4.After the incident the Applicant made a report (“FIR”) of the assault to the police, but soon he started to receive threatening phone calls from persons claiming to be the Sipa-Sahaba people to demand that he withdrew his FIR or else he would be killed, and so the Applicant became fearful for his safety and fled to Punjab to stay in his father’s place, and on 26 September 2015 he departed Pakistan for China, and from there he sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 11 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 14 November 2018 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local Sipa-Sahaba people upon his return to Pakistan as low 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 other than to press him to withdraw his FIR from the police, nor is there any evidence or reason for those Sipa-Sahaba people to specifically target him for harm given that he was just an ordinary Shia Muslim without any official post or political power or influence in his home district, nor is it accepted that after all these years since he left the country that they would still have any adverse interest in him, 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 204 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 Lahore or Karachi where it would be difficult if not impossible for anyone to locate him.

7.On 28 November 2018 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 12 January 2022 before the Board when he after confirming the evidence of his claim as contained in the hearing bundle for his appeal that he declined to give any further evidence or to answer any questions raised by the Adjudicator over the Board’s concerns as to various aspects of his claim despite being invited and advised by the Adjudicator to do so. On 8 June 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence which he refused or failed to explain or clarify despite being raised by the Adjudicator at the hearing and was advised to do so that it doubted the credibility of his claim of fear of harm from those Sipa-Sahaba people that caused him to flee his country to come to Hong Kong to seek protection simply because he refused their demand to withdraw the FIR when on his own case that the police had already indicated that they would not act on his FIR, that there was no reliable evidence of any intention or reason for those Sipa-Sahaba people to specifically target the Applicant for harm when the fact that his family who were also Shia Muslims had been able to continue to reside safely in his home village without any incidents, and that even on the Applicant’s own case that apart from that incident in July 2015 that there is no evidence of any further attacks by the Sipa-Sahaba people or of any on-going attacks or hostilities against Shia Muslims in his home village that the Board concluded that the Applicant has failed to establish any substantial grounds for believing that he will face any real risk of any proscribed forms upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 12 August 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1) That the Adjudicator refused his appeal without any solid reason;

(2) That the Board in the assessment of credibility of the Applicant’s claim failed to take into account as to how there is improper balance between Pakistani department and that in many circumstances, religion, culture and Pakistan law, and that law enforcement agencies also have areligious belief themselves, as is the majority of the Pakistan population;

(3) That the Board wrongly exercised its case management power by using a biased and formula approach in coming to the conclusion that state protection would be available to the Applicant as a matter of fact that such finding is contradictory and that the balancing exercise used on the assessment of the available COI had failed to conclude properly;

(4) That the Board had used cherry-picking and biased approach in coming to its conclusion is highly unfair and prejudicial;

(5) That the Board’s assessment of the Applicant’s credibility was procedurally unfair and/or irrational;

(6) That the Adjudicator erred in law by excluding or giving no weight to certain evidence of the Applicant because he regarded it as hearsay or speculation;

(7) That the Board erred in law and/or acted in a procedurally unfair manner by wholesale dismissing the Applicant’s evidence based on vague assertions which amounted to hearsay or speculation;

(8)  That the Board failed to give the Applicant benefit of the doubt in its assessment of the credibility of his claim.          

10.These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any 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 was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or in what way was the Board biased or formulaic in its assessment of the Applicant’s claim or failed to give reasons for its decision. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable 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 32 – 49 of its decision based on the material and information available in the hearing bundle before the Board in the absence of any oral evidence explanations or clarifications from the Applicant in respect of various issues raised by the Adjudicator during the hearing and despite being advised to do so. As such, 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.Furthermore, 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 even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also agreed and 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.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 7^th day of November 2024

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