SHARJEEL v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2099/2018

[2022] HKCFI 2860

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2099 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:

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 / the Non-Refoulement Claims Petition Office (the “Board”) dated 20 September 2018 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 24 July 2017 (the “Notice”). Though the Director is named as a defendant in the supporting affirmation, no relief is sought in respect of the Notice or any decision of the Director. 

2.  The Applicant is a Pakistani national, now aged 31.   He entered Hong Kong illegally on 12 May 2016 and was arrested on the same day.  On 17 May 2016, he raised a non-refoulement claim.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By his Notice dated 24 July 2017, the Director rejected his claims under all four applicable grounds.

3.  The Applicant appealed the decision of the Director in the Notice.  On 20 September 2018 by its Decision, the Board dismissed his appeal.  On 3 October 2018, he applied for leave to apply for judicial review of that Decision.  The Applicant did not request an oral hearing.  Having considered the nature of the application and 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.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.    In gist, he claimed that he would be harmed by supporters of Pakistan Muslim League (N) (“PML-N”) and Shia Muslims upon his return because he supported the Pakistan Tehreek-e-Insaf party (“PTI”) and is a devote Sunni Muslim.

5.  The Applicant was born in Gujrat, Pakistan.  He is single.  His family is living in Pakistan.  He received 9 years of formal education and started working as an electrician after graduating from school.  He became a supporter of the PTI in his village (Village Haryawala) in 2012.  He participated in election campaigns, putting up banners and arranging gatherings according to the instructions of Kashif, the local PTI leader.  He later became the official leader of election campaigns.

6.  About 10 to 15 days before the general election in May 2013, while campaigning for the PTI with 5 to 7 co-workers, he had a confrontation with members from the PML-N who asked them to stop campaigning in the area.  A fight broke out between the two camps.  The fight lasted for about 30 minutes.  The Applicant and his co-workers suffered injuries.  The back of his neck was hurt and he had bruises all over his body. He tried to file a police report but the police said their injuries were not serious and asked them to leave.  The PML-N won the general election.

7.  On 25 or 26 October 2013, while campaigning for PTI with his co-workers, the Applicant ran into the group of PML-N supporters who had fought them in the incident in May 2013.  The two groups engaged in a fight again.  The Applicant suffered bruises and swellings all over his body.  He and his co-workers went to the police station intending to file a complaint against the PML-N supporters.  Instead, three of his co-workers were arrested on a charge of assault because the group of PML-N supporters had filed a complaint against them.

8.  On 20 December 2015, while attending a religious gathering with about 800 to 900 other Sunni Muslims in his village, around 40 to 50 Shia Muslims came in and began attacking the Sunni Muslims.  The Applicant was kidnapped and taken to the Shia leader of his area, where he was punched, kicked and administered electric shock.  The ill-treatment lasted for half an hour.  He was locked up for two days without food or water. The local Shia leader asked him to leave the PTI and the Sunni sect.  Whenever he refused, they assaulted him for 10 to 15 minutes.  He managed to escape two days later.  He took a bus to Sialkot and stayed with his maternal uncle for one and half months.  He received treatment in a clinic.  It took him 2 to 3 days to recover.  One and a half months later, his uncle told him that three people apparently from Gujrat were looking for him.  At the same time, his parents also told him that some local Shias were looking for him.  They advised him not to return to his home village.  Out of fear for his safety, he fled to Hong Kong.

9.  The Applicant did not report the kidnapping incident to the police because he was terrified from the incident and was afraid of making the report alone.  He intended to remain loyal to the PTI and continue to be a Sunni Muslim.  He claimed he would be harmed by PML-N supporters or the Shia Muslims upon his return to Pakistan. 

The finding of the Board

10.  The Board found the Applicant incredible.  It considered his evidence about his involvement with the PTI vague, general, lacking in detail, and most fatally, inconsistent with incontrovertible country of origin information (“COI”).  Although he claimed to have been involved with PTI from 2004 or 2012 until 2015, he had only attended two to three meetings and organized about four meetings.  When confronted with contradicting COI, he tried to change his evidence or give explanations which are equally as incredible in other respects.

11.  In his NCF and at the screening interview, he claimed to have been involved in election campaigns for the May 2013 general election and the October 2013 local election and that he did not encounter any problem until December 2015.  But there is nothing in the COI to indicate there was a local election in Gujrat in 2013.  At the hearing before the Board, the Applicant claimed for the first time that he was involved in the election campaign for the whole of Pakistan in October 2015; and that his evidence about his involvement in the 2013 election was a mistake made out of confusion.  That evidence is also inconsistent with the COI which does not indicate there was an election for the whole of Pakistan in October 2015.

12.  The Applicant tried to explain the inconsistencies by saying that the October 2015 election he was involved in was a local election in Gujrat called nazim (the elected official of a local government in Pakistan) which was a small election and the results were announced on the same day.  That is inconsistent with the COI which described that election as a “gigantic electoral exercise” and an “immense undertaking” involving more than 30,000 contests to directly elected seats and involvement of more than 300,000 temporary election officials; and the results were not officially announced until 22 December 2015.  

13.  The Applicant claimed he was actively involved in the May 2013 general election campaign and was responsible for putting up banners which contained the name of the party and the candidate.  But he has no idea as to position or level that he campaigned for or the number of constituencies in his area.  He could not even recall the name of his constituency.  He said he campaigned for Choudhary Kashif, who was presumably the local PTI leader who gave him working instructions; but later he changed his evidence and said he did not know the name of the candidate.  According to the COI, there was no PTI candidate in any constituencies in Gujrat by that name in the 2013 general elections.  His evidence that PTI candidate Imran Khan did not win the 2013 general election is also flatly contradicted by COI that he won in constituency NA-56 Rawalpindi VII at the national level and became a member of the National Assembly. 

14.  The Applicant gave conflicting evidence about the number and the identities of the PML-N supporters who attacked him and whether he had sought treatment after the kidnapping incident. Given the claimed circumstances, his personal profile and the fact that he was not a Sunni religious leader, the Board found it inherently improbable that he was the only person kidnapped in the religious gathering out of some 900 people.  Further, Sunnis were the majority in Pakistan while Shias constituted 10 to 15 percent minority.  There was no credible evidence to indicate that the majority of ordinary Sunnis were targeted for harm by the Shias or the authorities in Pakistan.  There was nothing to indicate that Sunnis had difficulties in practising or expressing their faith in the country. 

15.  Because of these inconsistencies, the Board did not accept that the Applicant was involved in the election campaigns for May 2013 or October 2015, the claimed kidnap and other past incidents that occurred during those elections.  It rejected most of the Applicant’s evidence as incredible and inherently improbable.  It did not accept he has or had any interest in politics, or that he was ever politically active.  The Board did not believe he would face any real risk of harm upon his return to Pakistan from the PML-N supporters, Shia Muslims or at all.   It therefore found that the Applicant had failed to establish the factual basis to support his claim of fear and risk under any applicable ground under the USM and dismissed his appeal.

Legal principles applicable to judicial review

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 for judicial review

17.  The Applicant did not advance any grounds for judicial review in the Form 86.  In his supporting affirmation, he only exhibited a copy of the Decision.  He had been invited by the Court via its letter dated 15 October 2020 to advise the Court of his first language and to file submissions.  He did not respond.  He is deemed to have waived his right to file submissions.

18.  In the absence of specific grounds of application, the Court in an application for judicial review 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.  The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Pakistan. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

Conclusion

19.  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 the Applicant incredible and rejected his account of harm and fear.  The Board found the Applicant had failed to show even to the low standard of proof required that there are substantial grounds for believing he would be subjected to severe ill-treatment or torture; and that he has a well-founded fear that he will be subjected to persecution for a Convention reasons upon his refoulement to Pakistan.  As the Applicant bears the burden of proving his claim to protection, albeit to a relatively low standard, such finding is fatal.  It was on that basis that the Board found he had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM.  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 errors of law, procedural unfairness and irrationality.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

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