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HCAL 450/2019
[2022] HKCFI 1200
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 450 of 2019
BETWEEN
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Khan Muhammad Sufian |
Applicant |
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And |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
1st Putative
Respondent |
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Director of Immigration |
2nd Putative
Respondent |
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:
Leave to apply for Judicial Review refused.
Observations for the Applicant (Order by Deputy High Court Judge To):
Introduction
1. This is the Applicant’s application by Form 86 for leave to apply for judicial review of a decision he received on 13 February 2019. He named himself as the proposed respondent. In his supporting affirmation, he named the Director of Immigration (the “Director”) as the defendant. Having read the papers and the documents he submitted, it became clear that he is seeking judicial review of the decision of the Director in his Notice of Decision dated 19 March 2018 (the “Notice”) and the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) on 11 February 2019 (the “Decision”). Leave was granted to amend the Form 86 by substituting the Board for the Applicant as the proposed respondent.
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[1] and the Applicant has invoked those procedures. The Director’s decision in the Notice were superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[2]. For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also.
3. The Applicant is a Pakistan national, now aged 35. He is single and most of his family members (except one brother) reside in Pakistan. He completed Class 5 education in 1997. He has worked as a cable operator in Pakistan.
4. He was arrested in Hong Kong on 25 September 2015. He claimed he had entered Hong Kong via the Mainland on the same day. He was referred to the Immigration Department and then submitted a non-refoulement on 28 September 2015.
5. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. By a Notice of Decision dated 19 March 2018, the Director rejected his claims under all four applicable grounds. He appealed to the Board against the decision of the Director in the Notice. His appeal was dismissed by the Board’s Decision. On 18 February 2019, he applied for leave to apply for judicial review of that Decision.
6. The Applicant did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.
The Applicant’s case
7. The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form (“NCF”). The Applicant is a supporter of the Pakistan Tehreek-e-Insaf (“PTI”) party. In 2013, he started to participate in the election campaign by putting up posters. One day, when he was working alone, 5 or 6 members of the Pakistan Muslim League (Nawaz) (“PML(N)”) armed with rifles and pistols arrived. They stopped the Applicant and threatened to kill him if he continued to work for PTI. They punched him and kicked him. His nose bled. He filed a police report on the same day. Upon learning about the police reports, some PML(N) members demanded the Applicant to withdraw it. The Applicant complied with that demand.
8. On the election date, the Applicant and other PTI members campaigned for a PTI candidate. Suddenly around 10 to 12 PML(N) members attacked the Applicant and other PTI members. They kicked and punched him. He suffered broken bones and an open wound on his head. He was hospitalised in Civil hospital in Sialkot for 15 days. The Applicant made a police report. Then, some PML(N) members threatened to kill his family members unless he withdrew the complaint. The Applicant again complied.
9. In late 2014, the Applicant campaigned for the PTI in an election. Some PML(N) members told the Applicant to stop supporting PTI or he would be killed. On a day in December 2014, 5 PML(N) members threatened the Applicant in person saying that he should stop supporting the PTI or he would be killed. The Applicant refused. The PML(N) members left.
10. Then, one of the Applicant’s friend told him that he had heard that some PML(N) members were planning to kill him if he had participated in the late 2014 election. In March or April 2015, the Applicant felt he was being targeted by some PML(N) members. He went to Islamabad to stay with his friend for about ten days. During that time, some PML(N) members kept visiting his village to locate him.
11. Out of fear that he was being located by the PML(N) members, the Applicant moved from place to place. He stayed in Lahore, Rawalpindi Jalapur Jattan. Eventually, he decided to leave Pakistan. He took a bus to China and then sneaked into Hong Kong.
Finding of the Board
12. The Board found that the supporting documents submitted by the Applicant are at odds and irreconcilable with the case as he asserted. He produced a medical certificatein support of the treatment he received as a result of the injury he suffered during the second assault. The document purports to have been issued by the Medical Superintendent of Allama Iqbal Memorial Hospital. Apart from the obviously unusual feature that it is not printed on a letterhead and does not show any contact details of the hospital or the signatory and the identity of the signatory, that hospital was not the same hospital as the one which the Applicant said he had been admitted to. It certifies that the Applicant has been examined “to day on Jun 2013” but does not give the actual date. It is irreconcilable with the Applicant’s evidence that he had been admitted in May 2013. The injuries suffered by the Applicant as stated in the document were different from the injuries claimed to have been suffered by the Applicant. It certifies that the Applicant was admitted for 15 to 18 days and did not specify the actual length of hospitalisation. The Applicant was unable to explain these anomalies and excused himself because he was not mentally functioning properly.
13. The particulars of the police complaint produced by the Applicant bear little or no resemblance to the claims set out in his NCF. It states, for example, that a group of PML(N) thugs came to the Applicant’s home, broke down the door and shot at him a number of times. These events had never been mentioned by the Applicant in his written claims. The Applicant’s initial explanation was that these events occurred after he had come to Hong Kong. However, the document stated that these events happened in June 2013 just after the election when the Applicant was in Sialkot, not Hong Kong. This document is irreconcilable with the Applicant’s case.
14. After considering the Country of Origin Information (“COI”) regarding the prevalence of document forgery in Pakistan and the Applicant’s explanation, the Board took the view that he was not a credible witness and dismissed his account in its entirety.
15. The Board found the Applicant’s political knowledge is inconsistent with his claimed involvement. Contrary to the Applicant’s claims, the COI showed there was no relevant election held in Pakistan in December 2014 and that the name of the PTI candidate he allegedly supported and the name of the PML(Q) opponent are inconsistent with those shown in the COI.
16. The Applicant’s political achievements do not match his claimed political profile and effectiveness as a campaigner, which is said to form the basis for his having become the target of his PML(N) opponents.
17. Even if there is any truth at the core of the Applicant’s claim, the Board found the risk, if any, has been grossly exaggerated.
18. In conclusion, the Board was not satisfied that the Applicant faces any real or substantial risk of being subjected to serious or significant harm for reason of his claimed political involvement if he returns to Pakistan in the reasonably foreseeable future. The Board found he had failed to discharge his burden of proving his entitlement to non-refoulement protection on any of the four applicable grounds under the USM and hence dismissed his appeal.
Grounds for judicial review
19. The Applicant did not state his grounds for judicial review in the Form 86. In his supporting affirmation, he exhibited a two-page document setting out his personal background, education, work experience, his journey to China, his arrest in Hong Kong, his application for non-refoulement protection and his danger if returned to Pakistan. He mentioned nothing about what was wrong with the Decision which called for judicial review. He had been invited by the Court via its letter dated 15 December 2021 to advise the Court of his first language and to file submissions. He did not respond. The letter was addressed to his address as stated in his supporting affirmation dated 18 February 2019. It has not been returned through the post. There is nothing to suggest he has not received the letter or has moved from that address.
20. In the absence of specific 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. The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to his home country. His application is in substance an appeal against the finding of fact by the Board.
Conclusion
21. 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[7].
22. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was 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 found the Applicant not credible and rejected his evidence in its entirety. He has therefore failed to prove the factual basis to support of his case. It was on that basis that the Board found that he has 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, unreasonableness and irrationality. The Court could detect no 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. The Decision is utterly without fault.
23. For the above reasons, the Applicant has no arguable grounds for judicial review. There is no realistic prospect of success in the proposed judicial review. Accordingly, leave to apply for judicial review was refused.
Dated 27th day of April 2022.
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( Allen LEE ) |
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for Registrar, High Court |
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 his 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 27/4/2022
Khan Muhammad Sufian
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 27/4/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1
stPutative Respondent’s ref. no.:
USM 10908/18/3/360/P2110
Director of Immigration
2
ndPutative Respondent’s ref. no.:
QA T/C 3866/17 (Formerly RBCZ 13489/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] s37ZR of the Immigration Ordinance, Cap. 115
[2] [2018] HKCA 549
[3] 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
[4] 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”)
[5] 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
[6] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[7] [2018] HKCA 524 at para 14(1)
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