IMRAN MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1.   The Form 86 was amended on the Court’s own motion; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 27 April 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 8 April 2021 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 October 2018 (the “Notice”) refusing his application for non-refoulement protection.

The Applicant’s claim

2.  The Applicant is a Pakistani national, now aged 46.  His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, he claimed, if returned to Pakistan, he will be harmed or killed by his three creditors (the “creditors”) for being unable to pay the debt he owed them and for having a relationship with their sister (the “sister”) and making her pregnant. 

3.  The three creditors were brothers who had good connections with leaders from the Pakistan Muslim League (the “PML-N”).  They later switched to support the Pakistan Tehreek-e-Insaf (the “PTI”).  They operated their own poultry and mutton farms which supplied poultry to the Applicant’s poultry shop.  Since some of The Applicant’s clients who purchased from him on credit did not pay, his debt owing to the creditors snowballed to around seven to eight million Pakistani rupees in around June 2011.  His creditors’ men chased him for payment three to four times a month and threatened him.  Towards the end of 2011, he closed his shop and fled to Malaysia. 

4.  He returned to Pakistan in February 2015 to take care of his mother who was seriously ill.  On 7 March 2015, he was intercepted by his creditors’ men.  They demanded payment of the outstanding debt and attacked him until some passers-by intervened.  He was hospitalized and received 67 stitches.  He had an affair with the creditors’ sister before he left for Malaysia.  He considered their relationship had ended when he left Pakistan.  After his return, he learned that the sister was four months pregnant when he fled to Malaysia, the creditors tortured her and had their child aborted.  The Applicant feared that the creditors would find him, present him to the Jirga and he will be sentenced to death.  In around May 2015, thinking that his life would be in great danger, his uncle flew him to Hong Kong. 

The Board’s finding

5.  Despite a number of vagueness, exaggerations and discrepancies in his evidence, the Board considered the Applicant’s evidence consistent and assessed his claim on the basis of the facts as he asserted.  The Board also researched extensively into the country of origin information (“COI”), particularly about the Jirga system and the effectiveness of provincial police force.  It was satisfied that, the threats to the Applicant was localised and that he could not return to his home locality.  While being satisfied that he may be able to avail himself of the protection of the local authorities against the decision made by a Jirga, the Board was mindful that the local authorities may consider his affairs with the sister to be a private family matter or be sympathetic to the creditors’ family.  On balance, it was not satisfied that the Applicant could obtain protection from the local authorities.  However, it considered state protection is generally available should he required it, especially in a different locality.  Given Pakistan’s geographical size and the size of its population, the Board found the Applicant will be difficult to locate outside his home locality.  

6.  In respect of Torture Risk, the Board was not satisfied that there was any real, personal and present risk of torture if he is refouled and found that there are no substantial grounds for believing the Applicant to be in danger of being subjected to ‘torture’ within the meaning of section 37U(1) of the Immigration Ordinance.

7.  In respect of BOR 2 Risk, the Board was not satisfied that there is any real risk that the Applicant will be arbitrarily deprived of his life or be subject to the death Penalty.  This risk was not engaged.

8.  In respect of BOR 3 Risk, the Board did not accept that the Applicant had been subjected to pain or suffering sufficiently serious to reach the minimum level of severity required to invoke the protection under this ground.  It also found he could avoid the risk by seeking state protection and internal relocation. 

9.  In respect of Persecution Risk, while accepting that he is a member of a particular social group, being men who have been accused of honour crimes in Pakistan and may not have access to effective protection, the Board found he could avoid the risk by internal relocation and it is reasonable and not unduly harsh for him to do so.

10.  In summary, despite having accepted the case as he asserted, the Board found the Applicant had failed to establish sufficient factual basis to support his claim for protection under any of the applicable grounds under the United Screening Mechanism (the “USM”).  Hence, it dismissed his appeal.

The legal principles applicable to judicial review

11.  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[2].

Grounds for judicial review

12.  At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant complained that he had not been given proper language assistance.  First, he complained that the Decision is in English and was never explained to him in Urdu.  More importantly, he said he is an Urdu speaking Pakistani, but was provided with an Urdu interpreter from India on the second day of the hearing before the Board.  He said the Urdu spoken in India is different from that spoken in Pakistan.  He told the interpreter two to three times that he could not comprehend what she told him.  But the interpreter just ignored him.  She just kept interpreting as if she and the Board were just having a conversation.  He answered whatever he understood.  He said the hearing just lasted for 15 to 20 minutes.  He submitted that the Board’s Decision was made without a proper understanding of his claim.  For that reason, the Decision was made as a result of error of law, procedural unfairness and is therefore irrational.

13.  The Court took his complaint very seriously and called for the audio recording of the oral hearing before the Board.  The Court listened to the entire recording with a freelance interpreter (the “freelance interpreter”) in chambers.  To save costs, the Court did not schedule a hearing of the recording with the Applicant, but listened to the recording using the spare capacity from another freelance Urdu interpreter in another scheduled oral hearing.  The recording lasted for almost two hours, not 15 to 20 minutes as asserted by the Applicant.  The freelance interpreter listened to the recording very carefully and reheard part of it on a number of occasions. From the Court’s observation, the hearing progressed very smoothly.  The Court heard nothing which might suggest any disagreement between the Applicant and his interpreter.  Occasionally, the Applicant answered the Board’s question directly without waiting for interpretation.  He was not as uncommunicable in English as he wished the Court to believe.  He could have raised his complaint about the standard of interpretation, if he wished.  The freelance interpreter confirmed that the interpretation was smooth and the Applicant had made no protest about the standard of the interpretation service or raised any complaint or given any indication that he did not understand what was interpreted.  He said the standard of interpretation was normal and understandable.  He had a few disagreements with the interpretation and noted a few omissions, but considered the differences or omissions minor.  The Court is satisfied that this complaint is fabricated.

14.  As for his complaint that the Decision had not been interpreted to him in Urdu, that has no bearing on the propriety of the Decision.  The Decision was made before it was issued.  Whether it was read back to the Applicant in his own language could not have changed the Decision.  The absence of translation or interpretation could not raise any issue of procedural unfairness.  Furthermore, in Karamjit Singh[3], the Court of Appeal held 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 the Form 86 and supporting affirmation written in English showing he has access to interpretation services.

15.  Apart from the above complaints, the Applicant confirmed that he had no complaint about errors of law, procedural unfairness or irrationality in the Decision.  He accepted that the Decision is rational.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed. 

Overall scrutiny

16.  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 applicable to non-refoulement protection 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 analysed the evidence carefully and tested it against common sense, inherent probability and the COI.  It assessed his claim on the basis of the case as he asserted and some further finding of facts based on his case and the COI.  Then, applying the law applicable to non-refoulement protection under the USM to the above facts, the Board found he Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  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 Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

17.  For the above reasons, the Applicant’s leave application 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