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HCAL 338/2019
[2023] HKCFI 1028
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 338 of 2019
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BETWEEN
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Usman Sohail |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To:
1. Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and
2. The application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 4 February 2019 for leave to apply for judicial review of a decision of the Director of Immigration dated 30 January 2019. The Director is named as both the Respondent and the interested party. A copy of the Decision of the Board is annexed to his supporting affirmation.
2. Upon the Court’s enquiries, it was revealed that the Director had refused the Applicant’s application for non-refoulement protection by two Notices of Decision dated 19 May 2016 and 22 March 2017 (collectively, the “Notices”). Then the Applicant appealed to the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“the Board”) against the Notices. His appeal was dismissed by the decision of the Board dated 30 January 2019 (the “Decision”).
3. The decision of the Board is reviewable by judicial process but not the Director’s Notices because there are established statutory procedures of appeal to the Board under section 37ZR of the Immigration Ordinance, Cap. 115 and the Applicant has invoked those procedures. At the time of the filing of the Form 86, the Director’s Notices had been superseded by the Board’s Decision. It is no longer susceptible to judicial review: Re Moshsin Ali[1]. Hence, the Applicant may apply for leave to apply for judicial review of the Board’s Decision only and not the Notices of the Director. The circumstances make it clear that the Applicant’s intention is to seek leave to apply for judicial review of the Decision of the Board dismissing his appeal against the Notices of the Director. Accordingly, leave is granted to amend his Form 86 to give effect to the above.
4. The Applicant did not request an oral hearing. Having considered the nature of the leave application, the papers and the issues raised, the Court considered the leave application may be justly determined on paper without an oral hearing.
5. The Applicant is a Pakistani nation, now aged 31. He claimed to have sneaked into Hong Kong from Guangzhou on 9 July 2014. He was arrested on 11 July 2014 for illegally remaining in Hong Kong. He lodged his non-refoulement claim in writing on 13 July 2014. By a Notice of Decision dated 19 May 2016, the Director rejected his claim under the Torture Risk[2]; BOR 3 Risk[3] and Persecution Risk[4] grounds. On 7 March 2017, the Director invited the Applicant to provide further information on his claim based on BOR2 risk[5] ground which then became available. The Applicant responded via the Duty Lawyer Service that he had no additional facts to submit. Then, by a Notice of Further Decision dated 22 March 2017, the Director rejected his claim based on BOR2 Risk ground.
The Applicant’s case
6. The following account of the Applicant’s case is mainly based on the information in the Notices submitted by him and 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 summary, the Applicant claimed he will be harmed or killed by members of the Pakistan Muslim League (Nawaz) (“PML(N)”) and in particular, two members of the PML(N) named Tariq Mehmood Bajwa and Rana Muhammad Arshad, as he was a supporter of an opposing party, namely the Pakistan Awami Tehreak (“PAT”).
7. The Applicant claimed to have been brought up in Punjab, Pakistan. He completed up to class 8 in high school and has six years of working experience as a chef in Sangla Hill. He is single and has no children.
8. The Applicant and his family members were supporters of the PAT in his home area. He became a senior supporter in 2010 but did not hold any official position in the PAT. He helped the party leader of his area in organizing rallies, arranging transportation and promoting the PAT.
9. The PAT boycotted the 2013 General Election and called on its supporters to support the Pakistan Tehreek-e-Insaf (“PTI”) instead. The Applicant, his family and his friends all supported the PTI. He also encouraged others to vote for the PTI instead of the PMLN. In the run-up to the election, PMLN members requested the Applicant and other people from PAT and PTI to support their party on two or three occasions, issuing verbal threats against them if they did not do so. On the day of the election, while the Applicant and seven or eight others were working at a polling station, they were attacked by 16 or 17 PMLN workers carrying wooden sticks and pistols. The assault lasted for about 15 minutes before it was stopped by the police.
10. The PML(N) won the election and celebrated by holding rallies proceeding around the city, some of which passed by the Applicant’s house while he was there. Some PMLN members fired shots into the air in front of the Applicant’s house. They wished to take revenge on the senior supporters of the PAT. They demanded the PAT supporters leave the area or the country as soon as possible or else they would be killed. The Applicant kept a low profile. As a result, the PMLN members thought he had left the town.
11. At the beginning of 2014, the leader of the PAT, Muhammad Tahir-ul-Qadri (“Qadri”) announced his return to Pakistan. The Applicant and three senior PAT workers travelled to various places to gather people to welcome Qadri. While they were on their return journey home, they were ambushed by Gardoor and five other unknown men who fired at their car. The Applicant managed to escape unharmed. He made a report to the city police station in Sangla Hill, but to no avail. He said that Gardoor was an unsavoury character wanted by the police for engaging in illegal activities for the PMLN. He believes Gardoor acted for and had the support of Rana and Tariq who is a member of the Provincial Assembly sitting in office who had influence over the police.
12. The Applicant first fled to Islamabad and stayed with a friend until Qadri arrived at the airport. Qadri was prevented from disembarking at Islamabad airport. A protest ensued. The Applicant attended the protest which lasted for about two hours and ended up with police firing tear gas and beating up protesters. The Applicant was not injured at this incident. Qadri’s plane re-routed and landed at Lahore airport.
13. The Applicant was also informed by a worker in his house that the police had raided his home on 16 April 2014 and accused him of being involved in subversive activities. On his friend’s advice, the Applicant flew to Guangzhou from where he sneaked into Hong Kong.
The finding of the Board
14. The Applicant was legally represented by counsel and testified before the Board. The Board accepted that the Applicant may have supported the PAT at some point, but was unable to accept that he was a member or a senior supporter as alleged. He claimed to be a senior supporter who had used his own money to help fund the 2013 General Election campaign and was responsible for organizing rallies, meetings transport and promoting the party. Yet he was vague and evasive as to whether he was a member of or held any official position in the PAT. He was unable to show he had basic information in relation to the PAT during the period of his claimed involvement as a senior supporter, such the colors of the flag of the PAT, or the historic long march in 2013 led by Qadri which resulted in a significant written agreement between the PAT and the then government. The Board found he had exaggerated his involvement in the PAT. It did not accept the Applicant had the kind of political profile as he claimed or that he is of interest to Tariq, Rana and Gardoor.
15. The Board accepted that political violence occurred with some frequency in Pakistan but was unable to accept that the Applicant was targeted in any way personally or that the scuffle was particularly violent. This is because his account about PMLN rallies changed considerably over time and he made many first time allegations against Tariq and Rana, such as their involvement in the rally outside his home and their personally threatening to kill him. The Board did not accept the Applicant’s claim that the rally stopped deliberately outside the Applicant’s home under Tariq’s and Rana’s instruction or that they threatened to kill him on that occasion.
16. The Board considered the Applicant’s allegation about the ambush inherently improbable because of his low political profile and his identification of the shooting by Gardoor while he was driving at the speed of about 80 mph incredible. Further, he gave inconsistent evidence about his attempt to file a First Information Report about the shooting four days after the ambush. He also gave inconsistent evidence relating to the source of information about the police raid at his home and accusation of subversion. The Board found he fabricated his account about the ambush and shooting.
17. Having rejected his evidence about his political profile and made the various finding above, the Board found the Applicant had failed to show he would be at risk of any proscribed harm should he be returned to Pakistan in the reasonably foreseeable future. Applying the law applicable to non-refoulement protection under the USM to the facts found, the Board found the Applicant is not entitled to protection under any of the four applicable grounds.
The legal principles applicable to judicial review
18. 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[6].
Grounds for judicial review
19. The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, he enclosed a copy of the Decision and requested the Court to review all the evidence. He reiterated his fear of being harmed if he is returned to Pakistan. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if refouled. That is not permissible unless that finding involved errors of law, procedural unfairness or irrationality. In the absence of specific or proper grounds of application, the Court 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.
Conclusion
20. 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 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. It found the Applicant incredible and rejected almost the entirety of his account. It found the Applicant fabricated his case and failed to prove the factual basis to support his claim for non-refoulement protection. 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. 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 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. It is utterly without fault. The proposed judicial review has no realistic prospect of success. For the above reasons, leave to apply for judicial review is refused.
Dated 27th day of April 2023.
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( Allen LEE )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant on 27 April 2023
Usman Sohail
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors
on 27 April 2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3785/16/5/203/P984
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2562/15 (Formerly RBCZ 2395/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] [2018] HKCA 549
[2] 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
[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] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[6] [2018] HKCA 524 at [14(1)]
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