SULTAN SABIR v. TOTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2718/2018

[2021] HKCFI 2079

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2718 of 2018

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;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 5 February 2018 (the “Notice”), the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 16 November 2018 (the “Decision”).

2.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. For the benefit of the Applicant, the Court treated his complaints against the Director as directed at the Board also.  

3.  The Applicant is a Pakistani national.  He surrendered to the Immigration Department on 29 January 2016 claiming that he had sneaked into Hong Kong from the Mainland on 22 January 2016.  On 3 November 2016, he raised a non-refoulement protection claim alleging that he will be harmed or killed by his uncle and cousin if returned to Pakistan.

4.  In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4] and BOR 2 Risk[5].  By a Notice of Decision dated 5 February 2018, the Director rejected his claims.  His appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision dated 16 November 2018 (the “Decision”). 

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form which was prepared by him with assistance of the Duty Lawyer Service. 

6.  The Applicant’s father was a businessman and supporter of Pakistan Peoples’ Party (“PPP”).  His paternal uncle (the “Uncle”) is a supporter of Pakistan Muslim League Nawaz (“PMLN”). During his youth, he heard his father quarrelling with his uncle who tried to persuade his father to support PMLN. 

7.  After the Applicant’s father died in 2018, the Uncle took the title deed of his father’s gold shop from the Applicant’s mother under the pretext that he will take care of the business and pass it to the Applicant in due course.  As instructed by his mother, the Applicant attended the shop and to learn about the business.  He had some disagreements with his cousin (the “Cousin”).  In September 2008, his Uncle ousted the Applicant from the shop saying that his father had sold him the shop.

8.  After discussing with his mother, the Applicant went to make a report to the police.  He was intercepted by his Cousin and ten to twelve others.  They assaulted him with bare hands for ten to fifteen minutes.  He went to a hospital for treatment. As soon as he returned home, his Cousin and his group arrived.  They carried guns and fired into the air.  They demanded the Applicant to come out and threatened to kill him if they were able to locate him.

9.  The Applicant said he was advised by a friend to seek help from Major Moin Nawaz who is a member of the Provincial Assembly and a prominent member of PMLN.  When he arrived at the guesthouse where Major Nawaz was staying, the body guard told him that if he dare to complaint against his Uncle, the major would cause him all sorts of trouble as the major had a close relationship with his Uncle. 

10.  The Applicant did not return home but stayed with his friends for 11 days.  When he returned home afterwards, he was told by his mother that his Uncle was trying to occupy the house he and his mother were living.  His mother told him to go elsewhere so that his Uncle could not find him.  He then moved about from place to place. He was told by his mother that his Uncle and Cousin had come to his mother’s home and threatened her several times.  

11.  Nothing eventful happened until late 2015.  He was assaulted by five to seven unknown people carrying hand weapons for five to seven minutes.  Then, he fled to China and then sneaked into Hong Kong.

The finding of the Board

12.  At the hearing, the Board explained the procedures to the Applicant and informed him that there were issues relating to his general credibility which arose from the information which he had previously submitted to the Board.  The Board explained that it was solely a matter for him whether to give evidence or answer the Board’s question.  The Applicant indicated that he understood what had been explained to him.  Despite the explanation, he confirmed that he did not wish to give evidence or answer questions.

13.  The Board identified various conflicts and discrepancies among the Applicant’s evidence in the NCF, his statement during the interview and his submission which raised issues relating to the Applicant’s general credibility.  In the absence of the Applicant’s oral testimony, the Board was unable to determine the issues relating to his credibility.  The Board concluded that the Applicant failed to establish even to the low standard applicable that there was a real risk that he would suffer ill-treatment he claimed and for the reasons he claimed, if he is refouled to Pakistan.  Simply put, the Board found that the Applicant had failed to discharge the burden of proving the feared harm and risk, which is basic factual case he has to establish to support his claim for non-refoulement protection under any of the four applicable grounds.

The applicable legal principles     

14.  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[6].

Grounds for judicial review

15.  The Applicant filed a seven-page affirmation in support of his leave application.  Basically, he disagreed with the finding of fact by the Board.  His grounds revolve around procedural unfairness and bias based on lack of language and legal assistance; the Board giving undue weight to particular information in the Country of Origin Information (“COI”); and the Board’s failure to consider relevant issues.

Lack of language and legal assistance

16.  The Applicant complained that he was not given language and legal assistance after the interview before the immigration officer.  He said that the majority of the documents in the appeal bundle were in English and without translation.  Hence, he did not understand the reasons why the Director rejected his claim and could not properly prepare his appeal before the Board.  He also complained that the Decision of the Board was never explained to him. 

17.  As a matter of law, a claimant does not have absolute right to free language assistance at all stages of the proceedings.  In Karamjit Singh[7], the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, he has to live with or cope with his language disability.  He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit as and when he requires.  He has to find assistance himself from among his friends and his ethnic community.  Indeed, the Applicant was able to file an adequately well written affirmation in English himself.

18.  Furthermore, the appeal bundle is basically made up of his NCF, the record of his screening interview, and the Director’s Notice of Decision with the COI.  He knows what is contained in his NCF which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service.  He knows what is contained in the record of screening interview which he attended with the assistance of interpreter and legal representation.  The record had been read back to him in his own language and he signed to acknowledge that he understood and agreed with its contents and that no amendment was necessary. Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips. 

16.  The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter at the screening interview and in presenting his case to the Director.  He also had the services of a qualified interpreter at the oral hearing before the Board.  The appeal bundle is basically made up of his non-refoulement claim form, the record of the screening interview and the decision of the Director in the Notice, including the COI.  He certainly knew what were in the non-refoulement claim form and the record of the screening interview.  The Notice of the Director was issued to him on 5 February 2018.  It was not until 12 October 2018 that the oral hearing was held.  The Notice is in English and, unfortunately, no translation was provided.  He cannot expect these documents to be fully translated for him.   He had in between the issue of the Notice and the oral hearing more than eight months to seek assistance from among his own circle.  Indeed, he had access to interpretation services as reflected in his affirmation and Form 86 filed in connection with this application which were very well written in English.  Also, he could have sought assistance from the interpreter at the oral hearing before the Board. 

17.  His complaint about lack of translation of the Decision is frivolous.  The Decision was made after an oral hearing during which he had the benefit of interpretation services.  A translation of the Decision of the appeal which was already made could not change the Decision or the outcome of the appeal.

18.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board.  His complaint about lack of legal and language assistance is over-exaggerated.

Bias, unfair weighting of COI and the Decision being a tamplet decision

19.  The Applicant accused the Board of having acted in an unfair manner and making a tamplet decision, presumably meaning that the decision was pre-determined and not made in accordance with the facts of the case but by cherry picking the COI to reach the desired result.  He argued that this is evidenced by the fact that the Board did not explain how it balanced between the conflicting information in the COI.

20.  These grounds are all misconceived.  As analyzed above, the basic premise underlying the Board’s Decision is the Applicant’s refusal to answer questions to resolve the conflicts and discrepancies in his evidence so as to establish his credibility and the credibility of his case.  As a result of the failure, the Board found the Applicant had failed to prove the factual case to support his claim for non-refoulement protection.  He failed to prove his feared harm and risk.   Though the Board did not refer to the UNHCR Handbook on the Procedures and Criteria for Determining Refugee Status, being a professional board and experienced in determining such non-refoulement claims, it must have the provisions of the handbook in mind.  The handbook sets out an asylum seeker’s obligation in assisting the decision maker in ascertaining and evaluating the facts in support of his non-refoulement claims.  These obligations include:

(i)  To tell the truth and assist the examiner to the full in establishing the facts of his case.

(ii)  To make an effort to support his statements by any available evidence and give a satisfactory explanation for any lack of evidence.  If necessary, he must make an effort to procure additional evidence.

(iii)  To supply all pertinent information concerning himself and his past experience in as much detail as is necessary to enable the examiner to establish the relevant facts.  He should be asked to give a coherent explanation of all the reasons invoked in support of his application for refugee status and he should answer any questions put to him.

The Board acknowledged that the Applicant’s burden is only to prove his case to a relatively low standard.  However, that burden cannot be discharged merely by making a set of limited written assertions which are untested and which contain insufficient details and inconsistencies.  As the Applicant refused the Board’s invitation to participate in a joint endeavour to prove his case by answering questions raised by the Board, it was open to the Board conclude that no weight could be attached to what he said in his non-refoulement claim form and written submissions which are full of contradictions.  The Board did not find it necessary to refer to any COI for the purpose of considering the availability of state protection and internal relocation to prevent or avoid the risks.  Hence, all these arguments about cherry picking COI and tamplet decision are misconceived.  The Applicant did not pass the hurdle of showing a credible case.

Failure to consider relevant issues

21.  The Applicant did not give particulars as to what relevant issues the Board has failed to consider.  As the Board’s finding is that the Applicant has failed to prove a credible case, his complaint of the Board’s failure to consider relevant issues is misconceived.

22.  As for his disagreement with the Decision of the Board and his overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of fact by the Board.  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[8]. Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  It was on that basis that the Board found that the Applicant has failed to discharge the burden of proving a factual basis to support his claims for non-refoulement protection under any of the four applicable grounds.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.   This is a finding of fact which is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  There are no such vitiating elements in the Decision.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the intended judicial review. 

Conclusion

23.  For the above reasons, leave to apply for judicial review was 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] [1] [2018] HKCA 549

[2] 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

[3] 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”)

[4] 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

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

[6] [2018] HKCA 524 at [14(1)]

[7] CACV 78/2018

[8] [2018] HKCA 524 at para 14(1)