BILAL 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:

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 21 May 2021 for leave to apply for judicial review (the “leave application”) of (i) the decision of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 October 2020 refusing his application for non‑refoulement protection (the “Notice”) and (ii) the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 8 April  2021 (the “Decision”) dismissing his appeal against the decision in that Notice.

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  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. In the circumstances, the leave application as regards the Notice was refused forthwith and the Court solely considered his leave application as regards the Decision. 

The Applicant’s claim

3.  The Applicant is a Pakistani national, now aged 27.  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[2] for reference.  In gist, he claims he will be harmed or killed, if returned to Pakistan, by his two uncles and cousins because of a land dispute. 

4.  The Applicant’s case is that his grandfather distributed land to his father and his two uncles, Zakir and Shahid.  His uncles were not satisfied with the shares they received.  One day in 2018, Zakir demanded the Applicant’s father to transfer 4 kanals of land to him.  The Applicant’s father refused. Six months later, Zakir and four people attacked the Applicant and his brother while they were on the way to the village shop.  The Applicant fought back.  He struck Zakir on the back of his head, causing him to fall and lose consciousness.  He and his brother also suffered minor injuries.  After they returned home, his father reported the attack to the police.  Subsequently, Shahid came to the Applicant’s home and asked his father to withdraw the complaint, but the Applicant’s father refused.  Shahid responded with threats.

5.  Towards the end of the year, the Applicant and his brother felt they were being followed.  After discussion with their father, they moved to Village Formuli, 50 or 60 kilometres away.

6.  One day six months later, the Applicant and his brother saw his two uncles and two unknown men carrying rifles at a distance.  Fearing for their safety, his father arranged for the Applicant to go to Hong Kong and for his brother to go to Qatar.  After arriving in Hong Kong, the Applicant was told that his uncles had taken possession of all his father’s land.

The Board’s finding

7.  The Applicant testified before the Board.  The Board accepted that there had been ill feeling between the Applicant’s immediate family and his uncles which had resulted in incident of violence instigated by Zakir during the course of which the Applicant had injured Zakir.  But it found multiple and significant discrepancies between the account he gave in his non-refoulement claim form and his testimony which led the Board to the conclusion that the account of the danger he allegedly faced was not a reliable account.  These discrepancies include whether Shahid had mentioned to the Applicant’s family that Zakir had hired gangsters to kill the Applicant and his brother; whether his uncles and the two unknown men they saw in Village Formuli were all carrying guns; whether they were carrying rifles or machine guns; and whether shots had been fired.   In conclusion, the Board was satisfied that the account given by the Applicant was wholly unreliable and indeed not true.  It was not satisfied that his departure from Pakistan was the result of any threat from his uncles. 

8.  The Board also rejected the Applicant’s allegation that Zaki had bribed the local police in Village Hund not to arrest him.  It rejected his claim that the police would not have offered him protection if he had made a report.  It also rejected his claim that his uncles could locate him anywhere in Pakistan through their present or former connections with the Pakistan Tehreek-e-Insaf political party (the “PTI”).  It found he could reasonably and safely live elsewhere in Pakistan to avoid the risk of harm from his uncles.

9.  In conclusion, the Board found the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the Unified Screening Mechanism (the “USM”).  Hence, it dismissed his appeal.

The legal principles applicable to judicial review

10.  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[3].

Grounds for judicial review

11.  At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant confirmed that he had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements.  He repeated what he said in his supporting affirmation that he disagreed with the Decision, that his enemies are still in Pakistan and that his life would be in danger if he returned to Pakistan.  In effect, he is challenging the finding of fact by the Board, which is impermissible in an application for judicial review, save for errors of law, procedural unfairness or irrationality in the Decision. In the absence of any particularized grounds of application, the Court in a judicial review could only focus on those vitiating elements in the Decision sought to be reviewed. 

Overall scrutiny

12.  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.  

13.  The Board analysed the evidence carefully and tested it against common sense, inherent probability and the country of origin information.  It found multiple and significant discrepancies in his account which led the Board to the conclusion that the Applicant’s evidence was wholly unreliable and his account was not true.  It was not satisfied that his departure from Pakistan was the result of any threat from his uncles.  It found he had failed to establish the factual in support of any of his claims 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 findings were 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

14.  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