HUSSAIN IMRAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2300/2018

[2021] HKCFI 1080

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2300 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.  The Applicant seeks leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 12 January 2018 (the “Notice”) and the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 19 October 2018 (the “Decision”).   The decision of the Director in the Notice is not subject to judicial review because there are in place procedures for appeal against the Director’s decision to the Board.   In fact, the Applicant has invoked those procedures by appealing to the Board.  A judicial review of the Decision of the Board, if he is entitled to, would adequately protect his interest.  The Court therefore treated his application as an application for leave to apply for judicial review of the Decision of the Board dated 19 October 2018 and his complaints against the Director as being directed at the Board as well.

2.  The Applicant is a Pakistani national from the District Rawalpindi, Pakistan.  He entered Hong Kong by boat on 19 March 2015.  He was arrested on 26 April 2015.  On 28 April 2015, he lodged his claim for non-refoulement protection based on his fears and risks as a result of electoral violence.  He was released on recognizance on 18 May 2015.  On 30 August 2017, he was arrested by the police for taking employment illegally.  He was convicted of the offence and sentenced to 15 months’ imprisonment. 

3.  In due course, his non-refoulement claim was assessed on all four applicable grounds available under the USM, namely:

(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 (“Torture Risk”);

(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”) (“BOR 3 Risk”);

(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 (“Persecution Risk”); and

(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 (“BOR 2 Risk”).

4.  By a Notice of Decision dated 12 January 2018, the Director rejected his application for non-refoulement protection.  The Applicant appealed to the Board on 19 January 2018.  His appeal was dismissed by the Board on 19 October 2018.

5.  On 22 October 2018, he applied for leave to apply for judicial review of the Decision of the Board. 

The Applicant’s case

6.  The following account of the Applicant’s case is largely based on the information in his non-refoulement claim form which was prepared by him with assistance of the Duty Lawyer Service. 

7.  The Applicant was born in January 1987 in District Rawalpindi in Pakistan.  The majority of people in his area supported the Pakistan Muslim League-Nawaz political party (“PML(N)”). However, his family and relatives supported Pakistan People’s Party (“PPP”).  He played an active role in promoting the party, putting up posters/banners, arranging meetings, attending rallies, recruiting supporters etc. 

8.  One day in 2008, while he was packing up after organizing a very successful rally, a group of twenty-five to thirty members and supporters of PML(N) approached them with hockey sticks and pistols.  They told the Applicant and his leader, Javed, not to rally in the area again.  A fight ensured.  The PML(N) party left after warning them that they would not be spared if they rally there again.  Javed and others went to make a report to the police.

9.  Three days later, the Applicant, Javed and another co-worker were threatened on the street by thirteen to fifteen PML(N) supporters who told the Applicant’s party that they had bribed the police and no further police action would be taken against them.  Nothing happened in the four years that followed until the end of 2012.

10.  One day towards the end of 2012, while the Applicant and his co-workers were preparing for a rally in Kangar, twenty PML(N) supporters armed with guns approached them aggressively. They told the Applicant and his co-workers that they had been warned not to rally in that area.  They fired in the air and set the Applicant’s and his co-workers’ vehicles on fire.  The Applicant and his co-workers fled.

11.  In 2013, PML(N) won the election at both the federal level and in Punjab.  About a month after the election, while Javed, the Applicant and two co-workers were in a restaurant for dinner, five PML(N) supporters came in and fired at Javed and the co-workers.  The Applicant happened to have gone out to answer a telephone call and was spared of the attack.  He took a taxi to Mirpur which was about three hours away. 

12.  He stayed with different friends and relatives in different places in Mirpur to avoid being found by the PML(N) people.  He contacted his family and was told that the police only arrived three to four hours after the murder.

13.  The Applicant’s family told him that some PML(N) people had been to his home looking for him.  He thought the attackers were looking for him as he had witnessed the incident. He was advised by his friend to come to Hong Kong to seek asylum.  He fled to Hong Kong from Islamabad on 14 March 2015. 

14.  While in Hong Kong, the Applicant was told by his brother that PML(N) supporters were still looking for him.  He felt his life would be in danger if he returned to Pakistan.  He did not expect that the police or local authorities would protect him because the police were corrupt and would side with the ruling party, being PML(N).

The finding of the Board

15.  In essence, the Board found the Applicant an exaggerating and incredible witness.  The Board found significant inconsistencies and contradictions between his account as stated in the non-refoulement claim form and the evidence given before the Board. 

16.  The Applicant was inconsistent about what happened during the 2008 attack and as to the seriousness of injuries he suffered.  His assertion that the police was bribed not to take action for the attack in 2008 is inconsistent with his assertion that the police sided with the ruling party which at the time was the PPP.

17.  He was inconsistent about how his attackers looked for him in his home.  In his non-refoulement claim form, he said they just enquired his whereabouts whereas before the Board he said that they searched his home from room to room between 12 midnight and 1 am. 

18.  He was inconsistent as to whether he went to Jhelum and stayed alone with Qamar after the 2012 attack or he went there with his co-workers to stay with Qamar.

19.  More importantly, the details of the shooting in the restaurant and the murder of Javed and his two co-workers were so contradictory and conflicting that the Board could not have no confidence in his evidence.  His evidence was contradicting as to whether at the time of the shooting he was taking the telephone call in the adjacent street or at the back of the restaurant so that he could see the shooting.  His evidence that he could see the faces of the assailants and identify them contradicted his evidence that the attackers were masked.  He also gave inconsistent evidence that he fled the restaurant when he found the assailants were looking for him and that he stayed inside the restaurant until the situation had quieted down.

20.  The incidents happened quite some time ago.  Memories may fail in course of time.  Some inconsistencies are expected.  The shooting and murder was a very traumatic incident.  It was the most significant incident which formed the centerpiece of the Applicant’s fears and risks.  The incident took place only six years before the hearing.  Had it really occurred, it must have a deep impression in his mind.  However, the inconsistencies and contradictions are so numerous and so significant on important details that the only reasonable inference is that the alleged incident was just fabrications which never occurred.  The Board pointed out the inconsistencies and contradictions to the Applicant and gave him an opportunity to explain.  The Applicant did not clarify his evidence or provide a rationale.  He just stated that he could not remember due to being incarcerated.  The Board did not accept his explanation as the non-refoulement claim formed was signed on 8 December 2017 which was only about 10 months prior to the hearing.  Having considered the totality of the evidence and his explanation, the Board was unable to give the Applicant’s evidence any credence.  It was not satisfied that the Applicant had established that there is a real risk of harm under the different applicable grounds were he to return to the risk state.

21.  In respect of the Persecution Risk ground, the Board was not persuaded that there are grounds for believing that the Applicant would face a genuine and substantial risk of being subjected to serious or intolerable harm, or a serious and sustained, or systemic violation of human rights, if returned to Pakistan.   It did not believe that he had a well-founded fear of persecution or that there is a real risk of persecution for a reason as stated in the Refugee Convention.

22.  In respect of the BOR 3 Risk ground, the Board was not satisfied that there is a real risk that the Applicant will be subjected to torture, cruelty, inhuman, degrading treatment or punishment, if returned to Pakistan. 

23.  In respect of the BOR 2 Risk ground, the Board was not satisfied that the Applicant has proved that he would face a real risk of being deprived of his right to live which is the centrepiece of his factual case.

24.  In respect of the Torture Risk ground, the Board found there was no evidence that the Applicant conducted himself in ways which would cause him to become a target of the state.  There was no evidence that the Pakistan government has an adverse interest in him or that the alleged threat of death by members or supporters of PML(N) involved a state actor, acting in an official capacity, or that the state acquiesced in their threats towards the Applicant.

25.  All these are finding of facts and credibility of witnesses which are solely within the realm of the fact finding tribunal, ie the Board.

Grounds of the Application

26.  The Applicant advanced four grounds of appeal:

(1)  the Board erred in its finding of facts; its Decision is unfair and unreasonable; he was not given sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal;

(2)  the Director or the Board has failed to appreciate or give proper weight to the presence of state acquiescence;

(3)  the Director or the Board has failed to take his argument into account or failed to give enough weight to his argument and to the Country of Origin Information which supports his case of police corruption before reaching the Decision; and

(4)  the Decision was unfair and failed to attain the high standard of fairness required by the Wednesbury test.

Disposition

27.  The role of the Court in judicial review is not to re-assess the non-refoulement claim 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 [2018] HKCA 524 at [14(1)].

28.  The Court had rigorously scrutinized the Board’s Decision, the papers, grounds of application and the Applicant’s submissions.  The Board did not find the Applicant credible and accepted very little of his evidence.  It found that the Applicant has failed to discharge the burden of proving his fears and risks and failed to establish his entitlement to non-refoulement protection on all applicable grounds.   The Board gave reasons for its Decision.   These are finding of facts and credibility of witnesses which are exclusively matters for the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.

29.  The Court is of the opinion that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM.  An applicant has to prove not only that his fears and risks are genuine, but also they fall within certain criteria set out under the four applicable grounds.   On the fact, the Board was not satisfied that the Applicant has proved his fears and risks are genuine.

30.  Under Ground (1), the Applicant complained that he was not given sufficient time to prepare his evidence.  He gave no particulars.   He lodged his non-refoulement claim in April 2015.  He had the benefit of legal assistance in preparing his non-refoulement claim form on 8 December 2017 and at the screening interview when presenting his case to the Director.  The hearing of the Board was held on 12 September 2018.  In between, he had nine months to prepare his case and collate his evidence.  He did not complain before the Board that he needed time to prepare his case.  This ground is just a bald and convenient assertion.

31.  Under Ground (2), he complained that the Board had not considered state acquiescence.  In fact, the Board had considered that issue in paragraphs 77 and 78 of its Decision.  Acts of members of PML(N) is not to be equated as acts of the government and the state.  The Board found there was no evidence in support of state acquiescence in respect of the alleged torture, persecution and injury suffered by the Applicant.    

32.  Under Ground (3), the Applicant complained that the Board did not give enough weight to his argument about police corruption and Country of Origin Information.  The Board did not actually consider state protection and internal relocation.  In view of its finding of fact, the Board found it not necessary to consider these matters.  Hence, there is no substance in this complaint.

33.  In Grounds (1) and (4), he complained about unreasonableness and unfairness in the Board’s Decision.  In the opinion of the Court, the Decision is well justified by the Board’s finding of facts.  All in all, the Court found the Board was utterly without fault on its finding of facts.  There were no errors of law or procedural unfairness or irrationality in its Decision.  The Court therefore found no substance in the grounds of this application. Accordingly, the application for 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