MUZAFFAR IQBAL alias ZAFAR IQBAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 497/2021

[2024] HKCFI 735

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 497 of 2021

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;

1.   Leave to amend the Form 86 be granted; and

2.   Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 9 April 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 9 March 2021 (the “Decision”).  However, the copy of the decision which he annexed to his supporting affirmation as the decision in respect of which relief is sought is in fact dated 19 March 2021. The date stated in the Form 86 is an obvious typographical error.  Hence, leave is granted to amend the date of the Decision sought to be reviewed to ‘19 March 2021’.

2.  The Applicant had requested an oral hearing.  A hearing was scheduled and notice of hearing was sent to him on 10 January 2024 by post to his address as stated in his Form 86.  It has not been returned through the post.  Just two days ago, he had communicated with the Court quoting that address.  There is nothing to suggest that he had not received the letter or had moved.   However, he did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

3.  The Applicant is a Pakistani national.   He had previously entered Hong Kong as a visitor in July 2001, overstayed, was convicted for overstaying and removed back to Pakistan in June 2002.  He entered Hong Kong again illegally, was convicted for using an identity card relating to another person in September 2004 and was deported in 2005.  He entered Hong Kong again illegally in June 2006, was arrested and was sentenced to 18 months’ imprisonment for remaining in Hong Kong without authority and for breach of deportation order. 

4.  Then about eight months later, he raised a torture claim under Part VIIC of the Immigration Ordinance (the “Torture Claim”) on 11 January 2007.  His Torture Claim was rejected by the Director of Immigration (the “Director”) on 13 July 2013.

5.  He also raised a non-refoulement claim under the Unified Screening Mechanism (“USM”) by written representation dated 29 July 2013.  In due course, his non-refoulement claim was assessed on all applicable grounds under the USM other than the Torture Risk[1] ground; ie the BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  His claim was rejected by the Director’s Notice of Decision dated 13 February 2019.  His appeal against that Notice was dismissed by the Decision of the Board.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

6.  In gist, the Applicant claims, if returned to Pakistan, he would be harmed or even killed by the brothers of his girlfriend (Nebeela Tabassum) (the “girlfriend”), namely Muhammad Arif (“Arif”) and Muhammad Azam(“Azam”) who objected to his intimate relationship with their sister.

7.  The Applicant, now aged 48, was born in Lahore District in Punjab, Pakistan.  He had received no formal education.  Since arriving in Hong Kong, he married twice.  His first marriage with a Filipino woman was dissolved in October 2012.  Then, he married a Chinese Hong Kong citizen in April 2018.

8.  The Applicant started his love affairs with his girlfriend when he was a school bus driver in Pakistan in 2003.  He kept his relationship with his girlfriend secret for over two years because he knew his girlfriend’s family did not like their love affairs.  His girlfriend’s brothers were sub-inspectors with political association with Pakistan Tehreek-e-Insaf political party.  Arif was a hooligan selling alcohol and drugs as well. 

9.  The Applicant came across Arif and Azam twice in the street.  They told him to leave his girlfriend and warned him that they could do anything if he did not listen to them. 

10.  On 14 October 2005, while the Applicant and his girlfriend were dating in a park, they met Arif, Azam and an unknown person.  Arif and Azam were armed with knives and gun, while the unknown person was armed with a knife and hockey stick.  Upon seeing them, Azam and the unknown person attacked the Applicant and stabbed him with knives causing him bodily injuries, while Arif stabbed his girlfriend thrice.  The Applicant managed to escape.  He obtained medical treatment at a private clinic.  He recovered in about three weeks.  He learned from his family members that his girlfriend passed away in the hospital after the attack.

11.  The Applicant took refuge in various homes of his friends in Sahiwal, Rawalpindi and Karachi to avoid Arif and Azam until he left Pakistan for China in about May 2006 and from there he sneaked to Hong Kong.  He learned from his family in or around October 2012 that Arif and Azam were still looking for him by making telephone calls or visiting his home asking his parents for his whereabouts and threatening to kill him.

The finding of the Board

12.  The Applicant testified before the Board.  The Board found he is not an honest witness primarily because he did not make his claim for protection soon after he arrived in Hong Kong, but did so only after he was arrested almost eight months after his arrival[5]. When this fact is viewed against his previous record of overstaying and using an identity card relating to another person in connection with his illegally remaining in Hong Kong casts serious doubts on the veracity of his claim, as has been repeatedly held by the Court of Appeal: see Usman Butt, Sunil Koirala, Wasim Ashraf & Others[6]. He was also caught lying by the Board in his explanation for his absence at the previous hearing that he had to attend the clinic which only opened for business at night.  But these adverse findings did not seem to have any impact on the Board’s Decision as the Board did not reject his evidence for this reason, but rather it found even accepting his evidence the Applicant failed to establish his entitlement to protection.

13.  In respect of BOR 3 Risk, the Board’s assessment is:

“92. There is no or no sufficient evidence adduced by the [Applicant] to show that he had suffered severe ill-treatments physically and mentally as required by the law. On the basis of the [Applicant’s] evidence, he cannot show that there is a current genuine and substantial risk of harm if refouled.

93. No evidence has been adduced to show what, if anything had happened in the last few months to his family members. I find no genuine and or substantial risk in future.

94. The [Applicant] has failed to establish that if he is refouled to Pakistan, there are substantial grounds for believing that they would seek to harm him or he would be subjected to torture after he had left Pakistan for almost 15 years; hence his appeal under this topic fails.”

14.  I have grave reservation about the Board’s assessment at Paragraph 92 of its Decision which is based on the following finding in its Paragraph 59:

“59. There was no or no medical evidence in support of the assertions that he had been injured in the second incident. It is merely the [Applicant’s] word alone. There is no objective basis for the Board to make findings on the injuries allegedly sustained by him. However, he could leave his home at once to stay in different cities for seven months without the aid or care of others which revealed that his injuries would not be serious.”

15.  Arguably, the Board may have committed an error of law and a breach of the high standard of fairness required of the Board.  In over-emphasising the absence of medical evidence and the Applicant’s mere assertion, the Board has overlooked that though a claimant bears the burden of proof, he only has to prove his case on a relatively low standard.  His mere assertion, if believed, is sufficient to discharge that burden.  Despite some inconsistencies as to where on his back he was injured, the Applicant said he received stitches.  The claimant having raised this issue about his injuries and the stitches, the high standard of fairness as well as the Board’s duty of joint endeavour would require the Board to invite or enquire the Applicant if he would wish to show his stitches before disbelieving him.  This has not been done.  Arguably, this finding is the result of an error of law and procedural unfairness.

16.  Assuming his evidence of injuries is proven, it may be wrong to hold because they are not serious there is no real risk of harm, if refouled.  The assessment has to be made by considering all the circumstances.  If a brother was so ready to fatally injure his own sister, the fact that the Applicant managed to escape with less than serious injuries was more likely than not because of his luck than a calculated intention not to kill or not to seriously harm him.

17.  I note the Board’s doubt about the credibility of the Applicant’s evidence about his girlfriend’s death because it was hearsay from the Applicant’s family which did not have first-hand information about the death.  It quoted the House of Lord’s decisions in Lord Normand in Teper v R[7] and R v Sharp[8] about reliability of such hearsay evidence.  Presumably, the Board gave no weight to the evidence.  These are very authoritative precedents in criminal evidence, which have no relevance in non-refoulement proceedings.

18.  The evidential difficulties faced by a genuine non-refoulement claimant need not be over emphasised.  Hearsay is a notably common difficulty for someone fleeing his home country hurriedly for his life.  Hence, the courts accept that while a claimant bears the burden of proof, he only needs to prove his case to a very low standard.  In considering the question of evidence and credibility of a claimant, the courts in Hong Kong took the approach set out generally in the Note on Burden and Standard of Proof in Refugee Claims[9].  Basically, when assessing a claimant’s overall credibility, the decision maker takes into account factors such as reasonableness of the facts alleged, the consistency and coherence of the story, any corroborative evidence in support of statements, consistency with common knowledge or general known facts and the known situation in the country of origin (“country of origin information” or “COI”).  Credibility is established when the claimant has presented a claim that is capable of being believed.  There is no necessity to prove all the facts to such a standard to fully convince the decision maker that all factual assertions are true – where there is an element of doubt on part of the story, the claimant should be given the benefit of the doubt.  Thus, when a decision-maker approaches a piece of hearsay evidence, he may not apply the usual rule of evidence and dismiss it by giving it little or no weight simply because it is hearsay.  It is also well established law that to require corroboration in asylum cases is an error of law: see SS (Iran) v Secretary of State for the Home Department[10]. Arguably, the Board erred in adopting the wrong or criminal standard in assessing credibility of hearsay evidence.

19.  I also note the Board’s reservation in Paragraph 83 of the Decision about the authenticity of the death certificate relating to his girlfriend because of the difference in the spelling of the name of the deceased on the certificate.  But if the Board said “even if [the Board] accept that [the] girlfriend … was dead”, it must assess the Applicant’s risk on the basis that the girlfriend was fatally injured by her brother.

20.  The sum total of the above examination of the Board’s finding is that in view of the fatal injuries to the girlfriend, arguably there is a real risk of harm to the Applicant if he is refouled.  The next issue for this Court is, even if the Board is shown to be wrong in its finding in Paragraph 92 for the above reasons, what is the impact on the eventual Decision of the Board.

21.  In Paragraphs 66 to 77 of its Decision, the Board examined the COI and considered whether state protection is available to the Applicant.  It identified some COI which supported the Applicant’s assertion that even if he reported to the police, the police would not render him assistance or protection because Pakistan has long historical problems with endemic corruption and under-performance in the police.  However, the COI also revealed the recent and ongoing efforts of the Pakistani government in combating corruption and in putting in place strategies and programmes to bring about improvements to police professionalism, means of monitoring police performance and conduct and alternative avenues to seek justice and protection in Pakistan.  It found there are procedures and channels available to the Applicant for pursuing his complaints against Arif and Azam. It was the Applicant’s own volition not to complain and not that the police or state refused to render protection.  On balance, the Board held in Paragraphs 75 to 77, applying the standards set down by the English Court of Appeal and approved by the House of Lords in Horvath v Secretary of State for the Home Department[11] that there is reasonable or sufficient state protection available to the Applicant upon his return to Pakistan.

22.  On the basis of other COI, the Board was satisfied with the geographical size of Pakistan and its population, it would be very difficult for Arif and Azam to locate the Applicant throughout Pakistan.  Given his age and work experience, the Board found he would have no difficult re-establishing his career in other cities in which he had stayed and had social ties and bonds in Pakistan, such as Sahiwal, Rawalpindi, and other cities such as Karachi or Islamabad and Peshawar.

23.  Though not so highlighted in the section under ‘Decision on BOR 3 Risk’, the Board found state protection and internal relocation available to reduce, prevent or avoid the risk of harm.  These are finding of fact of the Board which are independent of its finding in Paragraph 92.  In view of the availability of state protection and internal relocation, this Court could have no reason to interfere with the Board’s findings in Paragraphs 93 and 94 after a lapse of 15 years as at the time of hearing before it or 18 years by now.  Thus, even if the Board were wrong in its finding about risk in Paragraph 92, its ultimate assessment about the Applicant’s entitlement to protection under BOR 3 Risk ground could not be faulted, albeit for different reasons.  Those different reasons are also finding of fact by the Board.

24.  In respect of BOR 2 Risk, the Board found there is no evidence or real risk that the Applicant will be arbitrarily deprived of his life, that a death penalty had been imposed on him or he will otherwise be deprived of his rights under BOR 2 or returning him to Pakistan would expose him to a real risk of violation of his right to life so as to constitute a breach of BOR 2.

25.  In respect of Persecution Risk, the Board found in Paragraphs 102 to 105 of its Decision:

(i)     that there is no evidence of the Applicant having suffered any severe harm or injuries which can put him into the category of persecution;

(ii)    that state protection is available to negate that risk;

(iii)   that his fear of persecution does not fall within the definition of persecution for the purpose of Persecution Risk as it arose out of a love affair and the differences between him and his girlfriend’s brothers and was not on account of any of the reasons protected by 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; and

(iv)   that there is no evidence that the government would be involved in this dispute. 

Except for the blemishes in item (i) which alone is not sufficient to overturn its assessment of Persecution Risk ground, there is nothing to suggest the Board erred in its other findings.

The legal principles applicable to judicial review

26.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[12].  

Grounds for judicial review

27.  The Applicant did not put forward any grounds of application for judicial review in his Form 86.  In his supporting affirmation, he only exhibited a copy of the Decision.  In effect, he is seeking to challenge the Board’s finding of fact that he had failed to prove that he would face real harm or real risk of harm, if returned to Pakistan.  For reasons as explained in the above paragraph, this is not permissible in an application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Discussion

28.  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 law and key legal principles relating to Persecution Risk, BOR 2 Risk and BOR 3 Risk grounds; the burden of proof and standard of proof; and correctly identified the issues.  Subject to some blemishes as discussed under the section on ‘The finding of the Board’, it applied the principles correctly and observed a very high standard of fairness. 

29.  Though finding him incredible, the Board assessed the Applicant’s claim wholly on the basis of the case as he asserted. It was on that basis that the Board found his feared risk of ill-treatment is unlikely to materialise; and even if it does, he could safely avoid the risks by seeking state protection or resorting to internal relocation and it would not be unduly harsh to expect him to do so.  Accordingly, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the three applicable grounds.  These are finding of facts and of law.  Insofar as it is a finding of fact, the Board assessed the Applicant’s claim on the factual case as he asserted.  He could have no reason to complain about the Board’s finding of these primary facts.  It then found on the basis of authoritative and credible COI that adequate state protection is available and internal relocation feasible.  It was on that basis that the Board further found he could reduce or avoid the risk of harm and hence had failed to establish the factual basis to support his claim for non-refoulement protection under any of the three applicable grounds.  This is a mixed question of fact and of law.  Insofar as it is a finding of fact, it is exclusively within the province of the Board, which the Court on a judicial review will not interfere except for the blemishes in its finding on the Applicant’s risk of harm as mentioned above.  Insofar as it is finding of the law, it is absolutely correct.  The Court could detect no error of law in the Decision, except for the blemishes in the application of the law as mentioned above.  Those blemishes have no adverse impact on the ultimate Decision of the Board.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.   The proposed judicial review has no realistic prospect of success. 

Conclusion

30.  For the above reasons, leave to amend the Form 86 is granted and leave to apply for judicial review of the Board’s Decision is refused.

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] 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

[2] 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”)

[3] 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

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

[5]  Paragraphs 83-90 of the Decision

[6]  HCMA 70, 114, 244, 379 & 402/2010

[7]  [1952] AC 480

[8]  [1988] 1 WLR 11

[9] 16 December 1998 at Paragraphs 11-12

[10] [2008] EWCA Civ 233 at Para 9

[11]  [2000] UKHL 37

[12] [2018] HKCA 524 at [14(1)]