KHAN NAJABIT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 303/2019

[2022] HKCFI 1018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 303 of 2019

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 by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 25 January 2019 (the “Decision”).  He did not request an oral hearing.  Having considered the nature of the application, the issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

Background 

2.  The Applicant is a national of Pakistan.  He sneaked into Hong Kong from the Mainland on 15 March 2016.  He surrendered to the Immigration Department on 16 February 2017 and then submitted written representations seeking non-refoulement protection claiming that he would be at risk of being harmed or killed by the Taliban, if refouled back to Pakistan.

3.  His non-refoulement claim was assessed on all four applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 2 Risk[2]; BOR 3 Risk[3]; and Persecution Risk[4]. By a Notice of Decision dated 19 June 2018 (the “Notice”), the Director rejected his claim.  His appeal against the decision of the Director in the Notice was dismissed by the Board.  He now seeks leave to apply to apply for judicial review of that Decision.

The Applicant’s case

4.  The following is a summary of the Applicant’s case according to his non-refoulement claim form (“NCF”) prepared by him with the assistance of an interpreter and the Duty Lawyer Service and the record of his screening interview which he attended with legal representation.

5.  The Applicant is a Muslim, now aged 45.  He is widowed and has two children living with him in a house in Mohallah Waleedad Banda.  He has another house in front of that house which he called “the out-house”, which he used to sit with his uncle and guests in the evening.  In April 2013, at the request of his neighbour, Salam Deen (“Salam”), he allowed Salam’s friends to stay in the out-house. 

6.  On 6 September 2013, while the Applicant and his uncle (the “Uncle”) were watching television in the out-house, a car pulled up outside.  The persons in the car fired randomly at the out-house for two to three minutes.  The Uncle was shot and died, but the Applicant escaped back to his home, retrieved a pistol and fired back at the attackers.  The attackers fled and left a letter saying that they were from the Taliban and threatened to kill the Applicant and his family if the police were informed.  As a result of the threat, the Applicant did not report the shooting to the police.  On the advice of his elder brother, the Applicant, went to stay with a friend in another village named Shinka.

7.  One day, his Uncle’s son, Dinyal, was badly assaulted when he was on his way to school.  The assailants gave him a letter telling the Applicant that he, Salam and his brother Kaim Khan (“Kaim”) should have surrendered to the Taliban.  The letter threatened to kill the Applicant for having provided refuge to Salam and Kaim.  The Applicant went to Salam’s house and found that Salam and Kaim had left.

8.  The Applicant’s brother and his nephew made a report to the police.  However, the police locked his brother in a cell saying that the Applicant was a terrorist and demanded the Applicant to surrender to the police.

9.  His nephew advised the Applicant that the police and Taliban had a close relationship and would kill him.  The Applicant left Shinka village and went to stay with another relative in Burhan.  While he was in Burhan, the police and Taliban went to his home several times trying to find him. 

10.  The Applicant fled to Karachi where he opened a store with his father-in-law’s financial assistance.  About four months after he had opened the store, he discovered he was being watched by two men.  One day, while he was away, some men came to the store looking for him.  When the Applicant learned about the incident, he moved to his cousin’s home.  Two months later, he opened another store with the stock from the old shop.  All these time, he learned from his brother that the police and other people were making enquiries as to his whereabouts.

11.  One morning two to three months after the new store was opened and while he was away, two men on motorbike arrived and fired at the shop for one to two minutes.  The boy who watched the store for the Applicant while he was away was shot and killed.  The Applicant fled to his cousin’s home and stayed for about a month.  Then he fled to Guanagzhou and later sneaked into Hong Kong.

Finding of the Board

12.  The Board accepted the Applicant’s evidence about his personal background and that he had been threatened by the Taliban.  Despite the seriousness of the Applicant’s allegations, which included two deaths and a serious assault on his nephew, he produced no objective proof.  His case is made up of bare allegations and beliefs which could not be tested.  There is no evidence to support the alleged close connection between the police and Taliban. There is no evidence to support the Applicant’s belief that state protection is not available.  It was the Applicant’s choice not to seek police assistance and not to complaint about police misconduct.  He opened a shop in Karachi and relocated himself to another part of the city after he felt he was being watched.   From his conduct, the Board found that the Applicant was not nearly as afraid of the Taliban as he maintained.  The fact that the Applicant could freely leave Pakistan through official channel is indicative that the government does not have any interest in him.  The Board did not consider the Applicant faces a high risk of harm should he return to Pakistan.

13.  There are conflicting credible Country of Origin Information (“COI”) suggesting on the one hand, that corruption and human rights abuses by the Pakistan authorities is common; and on the other that the government is taking actions to improve police effectiveness, monitor police conduct, fight corruption and abuses and step up anti-terrorist measures.  On balance, the Board found that whilst there may be problems in Pakistan, the state offers reasonable protection against police abuse and the Applicant can obtain police protection on his return to Pakistan.  The Board also considered internal relocation a viable option.  The Board therefore did not consider that the Applicant has substantial grounds for believing that he will be subjected to ill treatment if refouled to Pakistan and that there exists a reasonable degree of likelihood that his fear will materialise.

14.  On the basis of the above finding, the Board concluded that the Applicant is not entitled to protection under any of the applicable grounds under the USM and dismissed his appeal.

Grounds of application

15.  The Applicant’s supporting affirmation sets out 14 grounds.  In addition, he attached a statement of grounds consisting of 25 typed pages setting out numerous grounds and repeating some of the grounds in the affirmation.  The statement of grounds contains quotations from judicial precedents, statute and a convention, legal arguments and grounds of application.  Some of the arguments and grounds were repeated more than twice.  Some of the grounds do not make sense whether by itself or in the context of this application.  They appear to have been copied from a number of different applications or templates which have no bearing to the facts of this application.  These grounds are put under quotes below.  It took a lot of patience to read and understand these grounds.  The combined grounds in the affirmation and statement of grounds are as follows:

(1)  The Board erred in law in failing to consider relevant evidence;

(2)  The Board erred in law in failing to refer to adverse COI;

(3)  Procedural impropriety/unfairness in failing to consider lack of protection of, threat to and hardship faced by Shia Muslims;

(4)  Irrationality in finding that the Applicant’s persecution did not come under any of the convention reasons;

(5)  The Board erred in law in finding that the Applicant’s enemies did not come within the meaning of populace;

(6)  The Board erred in law as to when an assault could constitute torture;

(7)  The Board erred in law in improperly rejecting hearsay evidence;

(8)  “(8) and (9) Irrationality (what facts can undermine credibility)”;

(9)  The Board erred in law relating to the definition of persecution;

(10)  Procedural unfairness in relying on COI material not provided to the Applicant prior to the hearing or translated to him;

(11)  “In Form 86 and his affirmation, the Applicant complained he had not received the Director’s letter dated 22 November 2016 inviting him to submit additional facts for the consideration of BOR 2 Risk.  He was not given further interview before the Director decided against him on that BOR 2 Risk issue.  The applicant said he was not aware of the BOR 2 decision even during the appeal hearing in front of the adjudicator.  The Applicant alleged he was not told the appeal included the BOR 2 Risk issue.”

(12)  No legal representation and language assistance;

(13)  Cherry picking COI, taking into account COI that was not officially recognised or simply hearsay; relying on outdated cases; ignoring evidence and COI favourable to his claim; ignoring that the Applicant suffered serious injuries and mental/physical stress;

(14)  “24.  In her affirmation, the Applicant complained both the Board and the Director failed to consider extended state acquiescence in her case; failed to consider her psychological strain; failed to understand the real conditions of Bangladesh including human rights violation and abuse of power by AL; misdirected themselves in law; considered irrelevant facts;”

(15)  The Director failed to conduct sufficient inquiry of the relevant COI; failed to consider properly the issue of BOR 3 Risk and to give reasons;

(16)  “25.  In Enclosure 2 of Form 86, the Applicant complained the Director failed to properly consider the issue of state acquiescence; failed to appreciate the corruption and incompetence of the administration in Pakistan; failed to appreciate the misconduct of the Pakistan police; failed to consider the absence of state protection; failed to properly consider relevant COI; cherry-picked information; being unfair; rendered unreasonable decisions.”

(17)  “(iv) The Adjudicator was prejudiced, was wrong to disbelieve him, ignored his medical condition and failed to give a proper explanation for refusing his appeal.”

(18)  The decision maker not being the same person as the interviewer;

(19)  Irrationality in failing to consider if state protection exists, putting weight on irrelevant matters or on inaccurate or incorrect information;

(20)  Procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations;

(21)  Procedural impropriety in applying the wrong standard of proof;

(22)  No reasonable basis for rejecting the claim;

(23)  Failure to fully consider the extended form of state acquiescence;

(24)  No proper basis for consideration of internal relocation.

The applicable legal principle

16.  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[5].

Grounds (8), (11), (14), and (16)

17.  These grounds are clearly copied from applications which have no bearing to the present case.  These grounds are totally irrelevant.  They will be disposed of very briefly.

18.  Ground (8) lacks particulars.  The words, “(8) and (9)”, do not refer to anything meaningful in the statement of grounds.  They must have been copied from some documents which have no bearing to the present case. 

19.  Ground (11) is obviously copied from an appeal against a determination solely related to BOR 2 Risk ground.  In this case, BOR 2 Risk ground was considered along with the other three applicable grounds under the USM.  Furthermore, there is no evidence of the Director’s letter dated 22 November 2016 in the documents in this case.

20.  It is manifestly clear from the ground itself that Ground (14) is copied from a claim for non-refoulement protection by a woman claimant based on psychological ill-treatment and harm by AL the in Bangladesh.  In the context of a non-refoulement claim arising from Bangladesh, “AL” is referable to Awami League.  This case arose from Pakistan. The Applicant is a man.  Furthermore, there is no issue about psychological ill-treatment and Awami League in this case.

21.  It is also amply clear that Ground (16) is also copied from another case because there is no enclosure attached to the Form 86 at all.  The only enclosure attached to the supporting affirmation is identified as “Exhibit ABC” which is the statement of grounds. Ground (16) is copied from paragraph 27 of the statement of grounds.  The essence of this ground is repeated in other grounds and will be discussed under those other grounds.

Ground (1) – failure to consider relevant evidence

22.  The “relevant evidence” has not been identified.  The Court would bore this complaint in mind in its overall examination of the Decision.

Grounds (2), (10), (13) and (15) – COI 

23.  These grounds are related to the Board’s consideration of the COI.  The Applicant complained that the Director or the Board failed to conduct sufficient inquiry of the relevant COI but did not suggest what other COI the Board could have considered.  He also complained that the COI are based on outdated cases and hearsay which are not officially recognised. 

24.  The COI relied on by the Director and the Board are all from credible and official sources, including Country Report on Human Rights Practices for 2017 and The United States State Department Report on Terrorism for 2016 Report published by the United States Department of State; The World Factbook - Pakistan, published by United States Central Intelligence Agency; Country Information and Guidance – Pakistan: Background information, including actors of protection, and internal relocation issued in June 2017 published by the United Kingdom Government; Report compiled by the Asia Society Independent Commission on Pakistan Police issued in July 2012; Pakistan – COI Compilation August 2016 published by the Austrian Centre for Country of Origin and Asylum Research and Documentation; reports in the Punjab Police website; The Punjab Annual Report published by the Pakistan government; and other news reports and articles.    

25.  Having regard to the nature of the information, the information must contain an element of hearsay.  The people responsible for compiling and publishing the information are usually people acting under a duty owed to public authoritative bodies to provide reliable information.  The information is credible. 

26.  The essence of the Applicant’s complaint is about the weighting put on different parts of the COI and that the Board was cherry-picking and giving weight to the COI adverse to the Applicant.  The Board had carefully considered the information.  The weight to be given to a COI or parts of it is a matter for the Board having regard to the nature of information, the circumstances the information was obtained etc.  It is a finding of fact solely within the province of the Board.  The Court would bore this ground in mind in its overall examination of the Decision.

27.  The Applicant’s complaint about failure to provide the COI before the hearing and failure to provide translation of the COI are considered under Ground (12).

Ground (3) - Procedural impropriety/unfairness in failing to consider lack of protection, threat to and hardship faced by Shia Muslims); Ground (19) - Irrationality in failing to consider if state protection exists, putting weight on irrelevant matters or on inaccurate or incorrect information

28.  In making its finding on these issues, the Board had considered the COI.  The essence of the Applicant’s complaint is also about the weighting put on different parts of the COI and that the Board was cherry-picking.  For the same reasons as given in the above section, there is no substance in this ground.  Furthermore, the hardship peculiarly facing Shia Muslims had not been advanced by the Applicant in the appeal.

Ground (4) - Irrationality in finding that the Applicant’s persecution did not come under any of the convention reasons; Ground (9) – Error in law relating to the definition of persecution

29.  To claim protection under Persecution Risk ground, the Applicant has to prove a well-founded fear of being persecuted for reasons specified under the 1951 Convention relating to the status of Refugees, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion (the “Convention reasons”).  The Applicant’s case is that he was threatened with death for having given refuge to two enemies of the Taliban.  That clearly is a terrorist activity which is not related to any of the Convention reasons.  The Applicant had not identified the error in law relating to the definition of “persecution” and the Court was unable to find that the Board had made any error.

Ground (5) – Erred in law - that the Applicant’s enemies did not come within the meaning of populace

30.  This complaint lacks particulars.  The Applicant’s case is that his enemies are the Taliban who wanted to kill the Applicant for having given refuge to Taliban’s enemies.

Ground (6) – Erred in law as to when an assault could constitute torture

31.  “Torture” is defined under section 37U(1) of the Immigration Ordinance.  It must be severe pain or suffering, physical or mental, intentionally inflicted on a person for certain purposes by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity, excluding pain or suffering arising only from, inherent in or incidental to lawful sanctions. 

32.  The Board found the risk of torture is not foreseeable, real and personal.  Its reasons are set out in paragraphs 180 to 184 of the Decision.  The finding is based on the Applicant’s evidence that he did not suffer any severe pain or physical or mental suffering and that there is no evidence that the pain or suffering was inflicted by, or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  The Board had properly directed its mind to the law and in particular section 37U(1).  There is no error of law in the Decision.

Ground (7) – Error of law in re rejecting hearsay evidence

33.  The Applicant did not identify the hearsay evidence rejected.  Basically, the Board assessed his risk on the basis of his case as asserted by him, including the assault on his nephew, what the Taliban told his nephew and what he was told by his brother in relation to events which occurred in his absence.  There was no hearsay evidence that was rejected.  If there was, it is a matter of weight for the Board.

Ground (12) – No legal representation and language assistance

34.  In Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9] and Re Lopchan Subash[10], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[11] nor the judgment of FB v. Director of Immigration[12] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether the claimant is prejudiced for want of legal and language assistance.

35.  The Applicant had the benefit of legal representation in presenting his case to the Director.  All the benefits that legal representation could have afforded him were contained in their written submissions, non-refoulement claim form and answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board.  The Applicant suffered no prejudice due to lack of legal representation before the Board.

36.  In Karamjit Singh[13], 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.

37.  The Applicant complained that he was not given the COI before the hearing of the appeal and that the COI had not been translated to him.  Usually, the hearing bundle, including the COI, was provided to the appellant a week or so before the hearing.  The Applicant did not provide any evidence as to when the COI was given to him.  But it is important to note, as recorded in paragraph 16 of the Decision, that at the hearing he adopted all information contained in the hearing bundle and raised no complaint about not having had time to study the COI or not having been provided with a translation of the COI.

38.  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. 

39.  The Notice and COI are in English and unfortunately have not been translated.  As mentioned above, he has to find assistance himself from among his friends and his ethnic community.  The Notice was issued on 19 June 2018.  The oral hearing was conducted in 28 November 2018.  In between, he had five months to find out what the appeal bundle is about, if he was at all serious in pursuing his non-refoulement claim.  He should not do nothing and expect the host country would translate the documents to him as and when he requires as if the host country is head-hunting for people of his expertise.

Ground (17) - The Adjudicator was prejudiced and wrong to disbelieve him, ignore his medical condition and failed to give proper explanation for refusing his appeal

40.  The Board assessed the Applicant’s risk on the basis of his case as asserted by him, though on that basis the Board found on an objective basis that his fear not well-founded.  There is no issue about the Board disbelieving him.  The Applicant did not suffer any injury.  There is no issue about his medical condition.  The Court was satisfied that the Board had given full reasons for its Decision.

Ground (18) - The decision maker not being the same person as the interviewer

41.  To the Court’s knowledge, the interviewer at the screening interview is usually the decision maker in the Director’s Notice.  The Applicant did not produce the record of interview which he has a copy to support his claim.  The Court could have called for a copy of the record of interview; but there is no need to labour on this point as there is no substance in this complaint, even if it is true.  The appeal before the Board is a fresh hearing.  The decision maker is the Board which is not the person who conducted the screening interview.  Likewise, there is no reason why the decision maker at the stage of the non-refoulement proceedings before the Immigration Department must be the interviewer.

Ground (20) - Procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations

42.  The Applicant never complained about psychological or psychiatric ill-treatment.  There is no evidence that he had requested such examination and was refused.  The need for psychological or psychiatric or other related report or evaluation never arose. 

Ground (21) – Error of law in applying the wrong standard of proof

43.  The Board had directed itself on the legal principles on burden and standard of proof in paragraph 21 to 26 of the Decision.  The Court could find no error in its direction.

Ground (22) – No reasonable basis for rejecting the claim; Ground (24) – No proper basis for consideration of internal relocation

44.  These are challenges against the Board’s finding of fact.  The Applicant did not identify the basis of his challenge.  The Court bore this complaint in mind in its overall consideration of errors of law, procedural unfairness and irrationality in the Decision.

Ground (23) – Failure to consider the extended form of state acquiescence

45.  According to the Applicant’s case, the threat came from the Taliban.  Except for his own belief that the police and the Taliban are related, there is no evidence of such connection.  The Applicant did not complain to the police or other monitoring authority about his alleged police misconduct towards his brother, let alone that the allegation of misconduct is purely hearsay.  The issue of state acquiescence never arose.

Conclusion

46.  Having rigorously 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; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board found on the basis of the case as asserted by the Applicant that he has failed to prove the factual basis to support his entitlement to non-refoulement protection under any of the four applicable grounds.  The Court could not detect any error of law in the Decision.  The 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.   These are finding of facts which are 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.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success. 

47.  For the above reasons, the Applicant’s application for leave to apply for judicial review 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 violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

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

[6]  cacv 2/2018, (unreported) 23 March 2018

[7] [2018] HKCA 14

[8] [2018] HKCA 15

[9] [2018] HKCA 17

[10] [2018] HKCA 37

[11] (2004) 7 HKCFAR 187

[12] HCAL 51 of 2007

[13] CACV 78/2018