KHAN SHAHZAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2653/2019

[2025] HKCFI 2572

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2653 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  Leave to amend the Form 86 be granted; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 11 September 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”).  He did not identify the decision in respect of which relief is sought, but enclosed a copy of the decision of the Board dated 16 August 2019 (the “2019 Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Further Decision dated 18 April 2017 (the “2017 Notice”), refusing his application for non-refoulement protection under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), ie BOR 2 Risk ground.  He also named the Board as both the putative respondent and putative interested party.  It is obvious that the Applicant’s intention is to seek judicial review of the Board’s 2019 Decision and that the Board’s proper capacity in this leave application should be as the putative respondent.  Thus, on its own motion, the Court amended his Form 86 by naming the 2019 Decision as the decision in respect of which relief is sought and substituting the Director for the Board as the putative interested party.

2.  The Applicant had not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decisions, the Notices, the papers, and all the circumstances, the Court considered that the application could be justly determined on paper without an oral hearing.

Background

3.  The Applicant is a Pakistani national.  He entered Hong Kong illegally on 10 May 2009.  He was arrested by the police on 18 May 2009 and referred to the Immigration Department on the following day.  On 20 May 2009, he made a torture claims under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claims”). 

4.  Upon the establishment of the Unified Screening Mechanism (the “USM”), his Torture Claims became a non-refoulement claim and was assessed on all three grounds then applicable under the USM, namely: Torture Risk^[1]; BOR 3 Risk^[2]; and Persecution Risk^[3]. His claim was rejected by the Director’s Notice of Decision dated 18 February 2015 (the “2015 Notice”).  His appeal against that Notice was dismissed by the Board’s Decision dated 20 February 2017 (the “2017 Decision”).  He did not apply for judicial review of that Decision.  That 2017 Decision became final.

5.  On 29 March 2017, the Applicant was invited by the Director to submit additional facts, if any, which he considered relevant to his non-refoulement claim on all applicable grounds including that under BOR 2 Risk ground within 14 days of the invitation.  He did not respond.  His claim was then assessed and rejected by the Director’s 2017 Notice.  His appeal against that Notice was dismissed by the Board’s 2019 Decision.  He now applies for judicial review of the 2019 Decision.

The Applicant’s case

6.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim (“NCF”) form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claims that if returned to Pakistan, he will be harmed or killed by members of the Pakistan Peoples Party (“PPP”), in particular his four ex-schoolmates (collectively “his enemies”) for refusing to join the PPP.

7.  The Applicant, now aged 37, was born and raised in Village Mallah, Tehsil Hazro, District Attock, Punjab, Pakistan.  He had received eight years’ formal education but had never worked as his parents supported his living all along.

8.  He claimed that he became a supporter of the Pakistan Muslim League (N) (“PML(N)”) in 2007.  In 2007, his enemies had invited him to join the PPP twice.  He refused on both occasions.  Between the end of 2007 and the beginning of 2008, his enemies repeated their invitation several times when they ran into him on the street.  He refused.  They spoke abusive language at him and threatened to assault him each time he refused to join. One evening in March or April 2008, his enemies went to his home with six unknown people.  They yelled and shouted outside his home and threatened to kill him.  Having seen them armed with sticks, he escaped through the back door and sought refuge from his friend in Shadi Khan.  A few days later, he went to Lahore and pursued his religious study there.  While he was in Lahore, he learnt from his family that his enemies had been to his home a few more times.  He was scared and flew from Islamabad to Mainland China on 18 March 2009.  Then he sneaked into Hong Kong after touring in the Mainland for about ten days.  After arriving in Hong Kong, he maintained contact with his family, who told him that his enemies were still visiting his home and threatening to beat or kill him if they found him.     

9.  The Applicant believes he could not access state protection because the police in Pakistan is corrupt.  He does not believe internal relocation viable, as his enemies could locate him throughout the country through their powerful network.

The Board’s finding in the 2017 Decision

10.  The Applicant testified before the Board.  After his rights had been explained, he decided not to give evidence.  The Board found that his evidence was not reliable, as some of it had been proved to be untrue.  For instance, he stated in the NCF that PPP was the ruling party in Pakistan in 2007 and was more influential in his locality than PML(N).  However, according to credible country of origin information (“COI”), the PML(N) was ruling in Pakistan, the Punjab Province as well as the Attock-II Constituency in 2007, and that PPP was the ruling party in Pakistan from 2008 to 2013.  Also, he said in his NCF that his family had supported PLM(N) for a few generations already, but according to the COI, PML(N) was only founded in 1985.

11.  The Board found that although he claimed to be a PML(N) supporter, he could not tell when the election was held.  On evidence, the Board was not satisfied that he had an intention to come to Hong Kong to seek protection, as he raised the Torture Claims only two months after he had sneaked into Hong Kong and was arrested.  In addition, the Board also considered his pursuit of religious study in Lahore, his visiting around Mainland China for a week or two before coming to Hong Kong, and his breach of the law by obstructing a public officer in Hong Kong to be inconsistent with someone who was facing imminent risk in his home country and wanting to seek protection in Hong Kong. 

12.  Apart from uttering verbal threats, his enemies had done nothing to harm him.  He was used to those verbal threats.  The Board found he had illogically exaggerated those threats from one of assault to one of death.  If his enemies really wanted to kill him, they need not tell him about their plan to kill him. 

13.  The Board found that his dispute with his enemies is a private dispute, the ill-treatment inflicted on him in the past and to be inflicted on him in the future lacks involvement, active or otherwise, by a public official or other person acting in an official capacity and that the feared ill-treatment did not arise out of a reason protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol. Accordingly, the Board found the feared ill-treatment does not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance and the Applicant is not protected under the Torture Risk ground or Persecution Risk ground.  For the same reason, the Board did not consider the Applicant would be subjected to the kind of ill-treatment contemplated under Torture Risk ground or under BOR 3 Risk ground. 

14.  On the basis of objective country of origin information (“COI”), the Board accepted that while there are police failures, deficiency and corruption in Pakistan, there are alternative avenues for complaints against the police to redress his grievance. Hence, the Board found reasonable state protection is available.

15.  The Board also found that the risk faced by the Applicant is localized to his home area and given his age, it found he could have no difficulty relocating to other parts of Pakistan to avoid the harm and risk of harm from his enemies.

16.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the three applicable grounds under the USM.  Hence, it dismissed his appeal against the decision in the 2015 Notice.

The Board’s finding in the 2019 Decision

17.  The Board did not hold a hearing for the Applicant’s appeal against the Director’s decision relating to his BOR 2 Risk claim in the 2017 Notice.  The Board found that the 2017 Decision dismissing his appeal against the 2015 Notice is res judicata. Notwithstanding the Applicant stated under section 2 of the notice of appeal that “I request immigration to consider my documents”, the Applicant had not submitted any additional information or material on any other absolute and non-derogable rights under the HKBORO including right to life under Article 2 upon his return to Pakistan.  The Board found his claim of danger to his life has been considered by the immigration officer and rejected in the 2015 Notice.  His appeal against that 2015 Notice was dismissed by the Board.  The Board therefore held that his present appeal is res judicata. It found there is no substance in his notice of appeal and hence dismissed it.

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[4].

Grounds for judicial review

19.  In his supporting affirmation, the Applicant advanced the following 15 grounds of appeal against the decisions of the Director and the Board:

(1)  irrationality: failure to consider the concept of state acquiescence;

(2)  procedural impropriety: insufficient inquiry;

(3)  failure to provide adequate reasons as to decision made;

(4)  procedural impropriety/unfairness: failure to investigate into the COI of Pakistan;

(5)  irrationality: failure to place weight on relevant information and/or selectively placing weight on irrelevant information;

(6)  irrationality: failure to consider a consistent system of human right violations;

(7)  irrationality: failure to consider if state protection exists in Pakistan;

(8)  irrationality: placing weight on irrelevant matters, or on inaccurate or incorrect facts;

(9)  procedural impropriety: failing to call for psychological and/or psychiatric reports and/or evaluations;

(10)  procedural impropriety: applying the incorrect standard of proof;

(11)  no reasonable basis for rejecting the Applicant’s claim credibility;

(12)  failure to consider the extended form of state acquiescence;

(13)  failure to fully consider the COI reports in assessing risk to the Applicant;

(14) irregularity of the decision-maker being a different person than the interviewing officer; and

(15) No proper basis for consideration of internal relocation.

20.  Some of these grounds are directed at the Director, some at the Board and some at both the Board and the Director.  The Director’s decision in the Notice was superseded by the Board’s Decision and is not the subject matter of the leave application, see Re Moshsin Ali[5]. For the Applicant’s benefit, the Court assumed that all these grounds are directed at the Board.   All these grounds are directed at the Director’s or the Board’s finding of fact in relation to the 2015 Notice and the 2017 Decision respectively.  The decision of the Director in the 2015 Notice was superseded by the Board’s 2017 Decision.  The Applicant had not sought judicial review in respect of the Board’s 2017 Decision.  The Board’s findings in the 2017 Decision are now final.  Since these fifteen grounds are targeted at the Board’s 2017 Decision or the Director’s decision in the 2015 Notice and contain no allegation that the Board’s 2019 Decision was made as result of error in law, procedural unfairness or is irrational, they are of no relevance to the present leave application. 

21.  The Applicant also annexed a 26-page document to his affirmation, titled “The ground for the application are as follows”.  It contains articles from conventions relating to asylum matters; statutory provisions from the HKBORO; quotations from authorities such as Prabakar[6] and Ubamaka Edward Wilson v The Secretary for Security and Director of Immigration^[7]; and some other overseas cases.   It quoted the grounds of application for judicial review from a number of unknown and presumably local cases.  It quoted repeatedly from a passage in Ubamaka by Chief Justice Ma.  It provided a list of links via Facebook to Pakistan news. These quotes are fragmented and without context.  It is impossible to deduce any theme presented by these so called “grounds of application”.  The “grounds of application” is just a bundle of 26 pages of incoherent typewriting without any discernable content.  They are not directed at the Decision of the Board or at any error of law, procedural unfairness or irrationality in the Decision.  The Court could do no better than to dismiss these 26-page document as having disclosed no arguable grounds for judicial review.

22.  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. 

Overall scrutiny

23.  The 2017 Decision and the 2019 Decision were made by the Board constituted of the same adjudicator who was familiar with the facts of the Applicant’s claim and procedural background.  The legal and factual issues raised in the Applicant’s appeal are very simple and they revolve within a very narrow compass, particularly as the Applicant had not provided any additional information relating to his claim under BOR 2 Risk ground.  Having rigorously examined the Decisions, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had properly and correctly directed itself on the law and key legal principles relating to the four applicable grounds under the USM; correctly identified the issues and observed a very high standard of fairness.  Under the 2017 Decision, the Board found the Applicant’s life would not be at risk if returned to his home country.  That finding of fact is final and binding on the Applicant.  Despite the Director’s invitation, he produced no additional information or material that his life would be at risk if returned to Pakistan, whether under BOR 2 Risk ground or any other ground.  Also, it never was his case that a capital sentence had been passed on him.  All these facts are incontrovertible.  Applying the law applicable to non-refoulement protection to these facts, the Board could come up with no other conclusion than that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM, including BOR 2 Risk ground.  These are mixed finding of facts and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are finding of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  In any event, the material facts relating to the present leave application are incontrovertible.  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, the leave application 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

[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

[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”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] [2018] HKCA 524 at [14(1)]

[5] [2018] HKCA 549

[6] (2004) 7 HKCFAR 187l

[7] [2013] 2 HKC 75