SHAHZAD KHURRAM v. DIRECTOR OF IMMIGRATION

HCAL 1614/2019

[2024] HKCFI 517

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1614 of 2019

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 the Applicant being absent 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 filed on 13 June 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) dated 24 May 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 24 September 2014 (the “Notice”) and Notice of Further Decision dated 5 May 2017 (the “Further Notice”).

2.  The Applicant is a Pakistani national. He entered Hong Kong on 14 November 2007 illegally and was arrested on the same day. On 4 December 2007, he raised a torture claim which was later converted to 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]. His claim under the first three grounds was dismissed by the Notice. His claim under BOR 2 Risk ground was dismissed by the Further Notice. His appeal against the Notices was dismissed by the Decision of the Board. He now applies for leave to apply for judicial review of that Decision.

3.  The Applicant had requested an oral hearing. In the course of processing his application, a letter inviting him to file submission was sent to him on 15 November 2023 by post to his address as stated in his Form 86. He did not respond. After the hearing was scheduled, a notice of hearing was similarly sent to him by post on 27 December 2023. Neither the letter nor the notice of hearing has been returned through the post. He never informed the court of any change of address. There is nothing to suggest that he had not received the letter or the notice or had moved. On the day before the hearing, the court clerk attempted to contact him by telephone to remind him of the hearing, but the call was not answered. He did not appear at the hearing. The Court was satisfied that the notice of hearing had been duly served on him and adequately drawn to his notice. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly 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”) and supplementary claim form (“SCF”) 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 the family of his paternal cousin because of a forbidden relationship and by a gangster known as Pola who wanted to take over his land.

5.  The Applicant lived in a village in Kala Gujran in Jhelum, Pakistan. He fell in love with his paternal cousin Nosheen since they were eighteen. They kept their relationship secret because it was not arranged or approved by their families, and a relationship of this kind was considered shameful and could possibly trigger honour-killing. In August or September 2003, Nosheen’s mother discovered their relationship. She verbally abused, slapped, and pushed the Applicant. When the Applicant’s father learnt of the relationship, he punched him in the eye, causing it to swell. The Applicant sought medical treatment which took him 15 to 20 days to recover.

6.  About six months later, Nosheen was married to a rich and influential man. On a day in 2005, her husband came to the Applicant’s village for the Applicant. He warned the Applicant against having any contact with Nosheen and threatened to kill him if he did. The Applicant responded by saying he had put Nosheen out of his mind but Nosheen’s husband still slapped him and punched him, leaving a patch of bruise on his left chest.

7.  Two weeks following that confrontation, Nosheen's mother swore at the Applicant and claimed that once her seven sons grew up, they would take revenge on him for he had brought shame to her family. Out of fear, the Applicant went to hide in some nearby places for a few days before returning home.

8.  The Applicant also claimed that he had a land dispute with a local gangster called Pola. Pola was known for violence and connections with Pakistan Muslim League-N (“PML-N”), a political party in Pakistan. On a day in 2005, Pola demanded the Applicant to transfer a plot of farmland owned by his family (the “land”) to him. Out of fear, the Applicant agreed to do so in a year, but he did not.

9.  One day in May or June 2006, Pola and five of his men armed with wooden poles intercepted the Applicant outside his house. They threatened to take the land by force and assaulted him with fists and wooden poles for ten to fifteen minutes. The Applicant suffered from a broken right rib and had bruises all over his body.

10.  He tried to report the incident to the Jhelum Police Station but the officer there denied him entry to the station. He stayed at a park in Jhelum for two days and did not dare to go back home. Fearing that Pola would soon locate him, he left for Majidkemp, where he stayed for five months working in a garment factory.

11.  Towards the end of 2006, the Applicant ran into Pola. Pola fired two or three shots at him, but missed. The Applicant hid in different parks for five to six days. He did not make a police report as he thought the police would not listen to the poor.

12.  He then fled to Lahore where he lived peacefully for four months working as a casual labourer for different hotels. Then on the advice of a colleague, he flew to China from where he sneaked into Hong Kong. He learned from his family that the land was left abandoned and Pola kept asking for his whereabouts. He learned that some neighbours suffering from similar situations were beaten up by Pola.

13.  The Applicant did not believe internal relocation was viable as Pola was a powerful gangster and could locate him all over Pakistan.

The finding of the Board

14.  The Board proceeded on the basis that the events he relied on were true. It noted that about twelve years had passed since the Applicant arrived in Hong Kong and during that period he did not receive any threat from Nosheen’s family or Pola. In those circumstances and in view of the geographical size and the population of Pakistan, the Board considered it safe for the Applicant to return to Pakistan provided that he relocates himself to another part of the country.

15.  In respect of his claim under Torture Risk ground, the Board found Nosheen’s husband and Pola who ill-treated him were not public officials or persons acting in an official capacity. Hence, the Board considered the risk of torture from them do not meet the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance as to entitle him to protection.

16.  As for his claim under BOR 3 Risk ground, the Board found the ill-treatment he suffered in the past did not attain a minimum level of severity and hence the Board found he had failed to show any real risk of torture in future.

17.  In relation to persecution risk, the Board found that the Applicant’s harm or risk arose out of his disputes with Nosheen’s family and Pola. He was not threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. The Board therefore found the harm and risk of harm fall outside the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol. In addition, the Board found there is no logical reason for Nosheen’s family and Pola to have any reason to harass the Applicant after the lapse of 12 years since the Applicant had left Pakistan. Hence, there is no reasonable possibility of any Persecution Risk.

18.  The perpetrator that BOR 2 Risk protects against is the government of the claimant’s home country. It is not the Applicant’s case that he is subject to capital punishment by the Pakistani government. His source of harm was from Nosheen’s family and Pola who are not state actors. Hence, the Board found there is no evidence that the Applicant will be at risk of harm from capital punishment inflicted by the government of Pakistan or face harm from the Pakistani government that would place his life at risk.

19.  For the above reasons, the Board dismissed the appeal and confirmed the decision of the Director in the Notice and Further Notice.

The legal principles applicable to judicial review

20.  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[5].

Grounds for judicial review

21.  The Applicant annexed a five-page document titled “Grounds on which relief is sought” to his Form 86. In the first two pages, he set out the background of his claim and chronology of events. In the remaining three pages, he asserted he has standing to make the leave application. He quoted Ubamaka and the need to prove a minimum level of severity and genuine and substantial risk of being subjected to such ill-treatment to establish a claim. Then, he alleged, without stating any particulars and reasons, that the Director violated (a) risk of torture as defined in Part VIIC of the Immigration Ordinance; (b) his absolute and non-derogable rights under BOR 2 and BOR 3; and (c) risk of persecution. In the absence of specific grounds of application or grounds with sufficient particulars, 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.

Discussion

22.  In overall terms, the Applicant is in fact attempting to challenge the Board’s finding of fact under the guise of judicial review. 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. As explained above, 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.

23.  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. The Board assessed the Applicant’s claim wholly on the basis of his case as he asserted. It was on that basis that the Board found his feared ill-treatment is unlikely to materialise or falls outside the protection under the four applicable grounds. Accordingly, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds. These are finding of facts and of law. Insofar as it is a finding of fact, the Board assessed the Applicant’s claim on the factual case as he asserted. The Applicant could have no reason to complain about the Board’s finding of these primary facts. It was on that basis that the Board further found he had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the province of the Board to make, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. 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

24.  For the above reasons, leave to apply for judicial review 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