ANWAR MASOOD v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

HCAL 981/2021 [2024] HKCFI 1629 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 981 OF 2021 BETWEEN Anwar Masood Applicant and Torture Claims Appeal Board and Putative Respondent Director of Immigration Putative Interested Party 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: The Applicant is a 47-year-old national of Pakistan who entered Hong Kong illegally on 5 December 2017 and surrendered to the Immigration Department on the following day 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 the Shia community over some religious dispute. He was subsequently released on recognizance pending the determination of his claim. The Applicant was born and raised as a Sunni Muslim in Shalimar, Lahore, Pakistan. After leaving school he ran a glass designing business, got married and raised a family with his wife and children in his home district. One day in September 2017 while he was driving his car loaded with goods on his way to his shop, he struck and injured a horse in a road accident, whereupon the owner of the horse, a Shia man who accused him of harming his Holy Horse which he regarded as sacrilege against the Shia religion, and started to attack the Applicant by punching and kicking him, but the Applicant managed to make his escape from the scene. On the following day the Applicant heard that the horse had died from its injuries, that the Shia owner had subsequently burnt the Applicant’s car, and that the Applicant was advised by his friends to stay away from his home to go into hiding until the matter passed over. However, several days later a group of Shia men led by the horse owner came to the Applicant’s shop looking for him, and when they could not find him, they beat his staff and told them that they would find the Applicant and kill him. As a result the Applicant became fearful for his life and fled to Faisalabad to take shelter in a friend’s place before moving on to Gujrat, but when he later heard that those Shia men had come to Gujrat looking for him, the he felt it was no longer safe to remain in Pakistan, and so one day in December 2015 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 February 2018 and attended screening interview before the Immigration Department with legal representation. By a Notice of Decision dated 28 September 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”). 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 Shia Muslims 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, that in any event it was a private religious dispute between them without 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 with the majority being Sunni Muslims and 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 of mainly Sunni Muslims such as Karachi or Islamabad where it would be difficult if not impossible for those local Shia Muslims to locate him. 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 on 10 February 2021 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submission made by his lawyer on his behalf. On 2 July 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision. In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of a religious dispute with a Shia man over the accidental death of the Shia man’s horse that caused him to fear of being harmed by the Shia community that led him to leave Pakistan to come to Hong Kong to seek protection, that his claim that the horse was regarded as holy to Shia Muslims for religious reason was not supported by any evidence or relevant COI that the Board rejected his such claim, and concluded that the Applicant had failed to establish that he will face any real risk of being harmed or ill-treated or killed by anyone for any reason upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds. On 12 July 2021 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 but without putting forth any proper ground for his intended challenge. 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. 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. 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 of 63 - 77 its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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. 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. 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. Moreover, the Applicant recently on 28 May 2024 filed an affirmation requesting to withdraw his application as it is now safe for him to return to his home country. 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 that it is safe for him to return to his home country, I accordingly dismiss his leave application. Dated the 20th day of June 2024 (Chung Lai Fan, Christine) for Registrar, High Court 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 Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must: a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). Sent to the Applicant on 20 June 2024 Anwar Masood Applicant’s ref. no.: Nil. Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 20 June 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 13802/18/10/144/P2736 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3334/18 (formerly RBCZ 10349/18)(T6I4) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) __________________________________________________________________________ Form CALL-1