KASHIF MIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 723/2020

[2024] HKCFI 3529

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 723 of 2020

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 be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Kashif Mir (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 14 April 2020 (“2020 Board Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 27 April 2017 (“2017 DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection based on Article 2 of section 8 of the Bill of Rights Ordinance, Cap. 383 (“BOR 2” and “BOR 2 Claim”).

Background of the Applicant

2.  The Applicant is a Pakistani.  He was born on 5 June 1988 in Gujrat, Pakistan.  He received 10 years of education and had 2 years of work experience as a car mechanic.

The Claim

3.  The Applicant claimed to be a supporter of the political party Pakistan Muslim League-Nawaz (“PML-N”) since 2005.  Both the Applicant and his father were ordinary members of the PML-N.

4.  About two or three times each year, the Applicant participated in rallies and meetings organized by the PML-N. He supported the PML-N by inviting people to vote for the party and giving lectures to promote the party.

5.  The Applicant claimed that a group of local gangsters who supported the opposing political party, Pakistan Muslim League-Qaff (“PML-Q”) wanted the Applicant’s father to support the PML-Q because of his father’s popularity.  When his father refused, his father was forcibly taken away, assaulted and eventually killed by the PML-Q people.  This occurred between April and August 2007.  The Applicant’s family tried to report the PML-Q people to the police, but the police did not take any action.  The Applicant believed that this was due to bribes paid by the PML-Q people.

6.  In around March or April 2008, the Applicant was summoned to the PML-Q headquarter to meet with the newly elected Nazim (i.e. the local administrator) named Rahman.  Rahman asked the Applicant to join the PML-Q now that the PML-Q had won the election.  The Applicant refused and he was beaten with wooden sticks and a hammer for five minutes. They threatened to kill the Applicant if he refused to join the PML-Q (“Incident”). 

7.  The Applicant was hospitalized for 2 to 3 days.  He had a fractured right foot and a scar on his right eyelid.  He did not report the Incident to the police because he believed that it would be futile.

8.  The Applicant fled to his relative’s house in Pindi Khokharan, Kharian where he stayed peacefully until June or July 2009.  A PML-N party member informed the Applicant that the PML-Q people had learnt of his location, so he decided to flee.  The Applicant stayed in Lahore for about 20 days before coming to Mainland China with his own passport.  He stayed in Mainland China for two days before sneaking into Hong Kong by boat.

9.  After arriving in Hong Kong, the Applicant’s mother informed him that the PML-Q people went to his home in Pakistan to look for him from time to time, but they did not cause any harm to his family in Pakistani.  However, in support of the BOR 2 Claim, the Applicant submitted a letter dated 22 April 2017 (“2017 Letter”), purportedly written by the Applicant’s legal advisor in Pakistan, alleging that gangsters from the PML-Q, armed with firearms, had entered the Applicant’s family home in Pakistan looking for him and had assaulted his mother and threatened to kill the Applicant.   

10.  The Applicant claimed that he would be harmed or killed by the PML-Q people if he was to return to Pakistan.

Procedural history

11.  The Applicant arrived in Hong Kong on 25 July 2009 illegally and was arrested on 26 July 2009.  By a written representation of 28 July 2009, the Applicant made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”).

12.  Upon the commencement of the unified screening mechanism (“USM”) on 3 March 2014, the CAT Claim was taken to be a non-refoulement claim and was assessed under the USM. 

13.  By a decision dated 23 September 2015 (“2015 DOI Decision”), the Director refused the CAT Claim based on the following grounds under the USM, namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115;

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR”); and

(c)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

14.  The Applicant later filed an appeal/petition to the Board (“2015 Appeal”).  By a decision dated 8 March 2017 (“2017 Board Decision), the Board affirmed the 2015 DOI Decision.  The Board rejected and dismissed the 2015 Appeal.  The Applicant did not take the matter further.  Thus, the CAT Claim was concluded.

15.  By a letter dated 6 April 2017 to the Applicant, the Director invited the Applicant to submit additional facts and information (if any) which the Applicant considered relevant to his claim on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under BOR, such as the right to life under BOR 2. 

16.  The Applicant only submitted the 2017 Letter to the Director on about 24 April 2017.  The Applicant submitted no other supporting documents for the BOR 2 Claim.

17.  Having further considered the matter, by a decision dated 27 April 2017 (i.e. the 2017 DOI Decision), the Director refused the BOR 2 Claim.  The Applicant’s appeal to the Board (“2017 Appeal”) was dismissed on 14 April 2020 (i.e. the 2020 Board Decision).

18.  On 21 April 2020, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the 2020 Board Decision.  The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”).  In the Form 86, the Applicant named the Director and the Board as the proposed respondents. 

19.  As the CAT Claim had already been concluded in 2017 as aforesaid, the Form 86 only concerns the 2020 Board Decision.

20.  On 25 September 2024, the Applicant filed another affirmation applying to withdraw his intended judicial review application (“Withdrawal Application”).

The DOI Decisions

21.  In the 2015 DOI Decision, the Director noted that the low intensity and low frequency of past ill-treatment from the PML-Q people was indicative of a small future risk of harm upon the Applicant’s return.  Further, the injuries he suffered from the PML-Q people were not serious.  The PML-Q people had the opportunities to seriously harm or kill the Applicant during the Incident, but they refrained from doing so. This showed that the PML-Q people did not really intend to kill or seriously harm the Applicant.

22.  The Director also did not believe that the PML-Q party in general was adversely interested in the Applicant because he was just a supporter of the PML-N at local level and the PML-Q had won the local election.  His dispute with the PML-Q people therefore appeared to be limited to his home locality only.

23.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Pakistani government was able and willing to protect the rights of its citizens and reasonable state protection would be available to the Applicant, if necessary.

24.  The Director further found that internal relocation would be viable.  If the Applicant moved to Karachi or Lahore, the PML-Q people would have great difficulty in locating him.  After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

25.  For the reasons set out in the 2015 DOI Decision, the Director rejected the CAT Claim based on all applicable risks under the USM except the BOR 2 risk.

26.  The Applicant submitted the 2017 Letter to the Director to support the BOR 2 Claim. 

27.  The Director noted this information but considered that with reference to information previously provided by the Applicant, the 2017 Letter did not provide any additional materials or facts on any other absolute and non-derogable rights under BOR, particularly BOR 2 risk.

28.  Having considered all the relevant evidence, the Director did not accept that the Applicant faced any BOR 2 risk. By the 2017 DOI Decision, the Director rejected the BOR 2 Claim.

The Board’s Decisions

29.  In the 2017 Board Decision, the Board held that the Applicant was not credible for reasons detailed in §§55-71. The Board found that the Applicant was not giving truthful evidence regarding his father’s alleged murder which was the central matter for the Applicant’s case and the Board was unable to attach any credence to the Applicant’s uncorroborated account of any of the other incidents he alleged had occurred.  The Board found that the Applicant would not suffer the harm he claimed to fear if he were returned to Pakistan.

30.  The Board further found that even if the Applicant’s case were accepted to be credible, he could mitigate any risk from the PML-Q people by relocating to Lahore or Karachi.  With his age and work experience, it would not be unduly harsh to expect him to do so.  The Board therefore dismissed the 2015 Appeal and affirmed the 2015 DOI Decision.

31.  In the 2020 Board Decision, the Board reconsidered its findings made in the 2017 Board Decision following the hearing for the 2017 Appeal held on 4 March 2020 (“2020 Hearing”).  At the 2020 Hearing, the Applicant produced a police report from Pakistan which transpired to be the alleged First Information Report in respect of the Applicant’s father’s death which had previously been considered by the Board in the 2015 Appeal.  The Board also considered the 2017 Letter.  The Board found no reason to alter the conclusion it had reached in the 2017 Board Decision.

32.  The Board doubted the genuineness of the 2017 Letter and asked the Applicant to give information on its author, who was identified as an advocate of a law chamber in Gujrat.  The Applicant could not provide any information on the author or adequately explain why neither the name of the author nor the name of the law chamber could be found on the Internet.  In any event, the Board was satisfied that the 2017 Letter had no evidential value as the writer had no first-hand knowledge of the matter that he was alleging.  He could only have been writing what he was told by someone else.  He even got the name of the political party referred to therein wrong.

33.  The Board maintained the view that the Applicant was not a credible witness and found that the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the BOR (including this right to life under BOR 2) being violated if he were to return to Pakistan.  It therefore dismissed the 2017 Appeal and affirmed the 2017 DOI Decision.

Legal principles applicable to judicial review

34.  In a judicial review, the court does not step into the shoes of the decision makers.

35.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board”.

36.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

37.  The Applicant did not advance any grounds for his intended judicial review in the Form 86.  In the Supporting Affirmation, the Applicant only stated that: “I would like to reject and [set] aside the Decision mad [sic] by Immigration Department they disregard the danger and threats I face in my country shold [sic] I be deported here.”  He then produced the 2020 Board Decision and the covering letter as exhibits to the Supporting Affirmation but no other supporting documents. 

38.  By the Withdrawal Application, the Applicant applied to withdraw and close his intended judicial review application.

39.  The Director subsequently informed the court that the Applicant had been removed in October 2024. 

40.  As the Applicant has been removed from Hong Kong in October 2024, I decided to deal with the Applicant’s applications for leave for judicial review and for withdrawal of the leave application on papers.   

41.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the 2020 Board Decision in affirming the 2017 DOI Decision, or in what way was the 2020 Board Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 

42.  Having rigorously examined the 2020 Board Decision and the 2017 DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the BOR 2 Claim; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness. 

43.  The Board found that the Applicant was not a credible witness.  The Board found that the Applicant failed to establish a personal and real risk of his absolute and non-derogable right under the BOR (including his right to life under BOR 2) being violated.

44.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under BOR 2.  These are finding of facts which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the 2020 Board Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The 2020 Board Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable.  

The Withdrawal Application

45.  The Applicant subsequently filed the Withdrawal Application on 25 September 2024 stating that he wanted to withdraw and close his judicial review application.

46.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

47.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

48.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

49.  In the premise and having considered the 2020 Board Decision and the 2017 DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the BOR 2 Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with a realistic prospect of success, I accordingly dismiss this application for leave to apply for judicial review.

50.  As the court had been notified by the Director that the Applicant had been removed from Hong Kong and the Applicant has not informed the court of any change of his address for service, the court will send a copy of this judgment and the sealed order to the Applicant at his latest address stated in the Withdrawal Application with a copy set to the Director and request the Director to use his best endeavor to forward them to the Applicant.

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