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

HCAL 2445/2020

[2024] HKCFI 3230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2445 of 2020

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 Applicant being absent in open court;

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 15 December 2020 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 16 October 2020 (the “Decision”) and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 November 2018 (the “Notice”) refusing his application for non-refoulement protection.

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 and the Applicant has invoked those procedures. The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. In the circumstances, the Applicant’s leave application as regards the decision of the Director in the Notice is refused. The Court only considered his leave application as regards the Decision.

3.  The Applicant had requested an oral hearing. However, before his leave application came to be processed, he had been removed from Hong Kong. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered his application may be justly determined on paper without an oral hearing.

Background

4.  The Applicant was a Pakistani national. He sneaked into Hong Kong from Shenzhen on 19 April 2017. On 4 May 2017, he made a non-refoulement claim. In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. His application was rejected by the Director’s Notice. His appeal was dismissed by the Board’s Decision. He now seeking leave to apply for judicial review of that Decision.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims if returned to Pakistan, he will be harmed or killed by members of the Pakistan Muslim League (N) (“PML(N)”) because he is a member of a rival political party, namely the Pakistan Terek-e-Insaf party (“PTI”) and refused to quit the PTI to join the PML(N).

6.  The Applicant, now aged 37. He was born in Village and Post Office Momin Pur, Tehsil Hazro, Dist Attock, Punjab, Pakistan. He received formal education for eight years. His mother and two siblings are Hong Kong residents currently living in Hong Kong. He is married to a Hong Kong resident in 2013 over the phone, and they have a child together. They are also living in Hong Kong.

7.  The Applicant joined the PTI as a member in 2013. Before the 2013 election, three PMLN members asked him to leave the PTI and join the PML(N) but he refused. They gave him extra time to consider. A few days later, 10 to 15 PML(N) members approached him and asked if he had decided. When he refused to join the PML(N), they assaulted him with wooden sticks. He later went to register a complaint with the police, but the police refused to file his complaint. Two to three days later, whilst riding his motorcycle to another city, he was intercepted by five unknown people. They took him to an unknown location where they threatened to kill him if he did not join the PML(N) immediately. They released him after he said he would reconsider. Out of fear, he moved to Rawalpindi after two to three days and stayed there for four years until 2017.

8.  In January 2017, whilst driving in his car, eight to nine PMLN members armed with pistols suddenly came out and stopped his car. They smashed the windscreen of his car and assaulted him with wooden poles. The Applicant then went to a local hospital for medical treatment and was hospitalised for four days. After his discharge from the hospital, he reported the attack to the police, but the police refused to register his complaint.

9.  He does not believe the Pakistani authorities and police would help him, as the police was under the influence of PML(N). He does not believe internal relocation would be viable because PML(N) members could locate him throughout the country through their powerful network.

The finding of the Board

10.  The Applicant testified before the Board. The Board found his evidence unreliable in several key areas but is partly credible. Despite claiming to have been assisting his father in PTI from the early age of 13 through to the time when he joined the PTI as a member in 2013, the description of his activities with the PTI were vague, generalised and lacking detail. That caused the Board to form the impression that he played no significant role in the PTI and had no significant political profile as would be made a target for harm or elimination by the PML(N). The Board also found his evidence about the “unknown location” to where he was abducted in 2013 remarkably vague. All that he could tell was that he “heard voices”. He could not say anything about some of the features of the place or what he sensed about the location. Furthermore, the Board considered his evidence that Mainland China, not Hong Kong, was the intended destination of his flight from Pakistan untruthful. It found that his intention was to come to Hong Kong to join his mother, his siblings and his wife. The Board found he was willing to modify his evidence to suit his purposes.

11.  Notwithstanding the doubts the Board had of the reliability of his evidence, having regard to the reports of political violence in the country of origin information (“COI”), particularly around election times, the Board gave him the benefit of doubt. It accepted his evidence about being assaulted by members of the PML(N), but considered the harm he suffered was not life-threatening. It accepted his evidence about his relocation to Rawalpindi towards the end of 2013, but not for the purpose of avoiding harm from members of the PML(N). It also rejected his evidence about the claimed abduction in 2013 and the assault in 2017.

12.  On the basis of the COI, the Board noted that the PTI had become the ruling political party and hence the Applicant’s risk of harm was reduced. It accepted that adequate state protection was available. The Board hence reached the conclusion that there are no substantial grounds for believing there is a real risk that the Applicant will be harmed or killed by members of the PML(N) upon his return to Pakistan. The Board therefore dismissed his appeal against the decision in the Director’s Notice.

Legal principles applicable to judicial review

13.  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

14.  The Applicant did not advance any grounds for judicial review in the Form 86 or in his supporting affirmation. 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.

Conclusion

15.  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 applicable to non-refoulement protection 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 analysed the evidence properly, tested it against common sense and inherent probability and gave reasons for its finding. It found the Applicant incredible and that his evidence is only party credible but partly not. It gave him generous allowance for the benefit of doubt. It accepted his evidence about political violence near election times and that he had been assaulted by members of the PLM(N), but rejected his evidence about the 2013 abduction and 2017 assault. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. This is a mixed finding of fact and of the law. Insofar as it is a finding of fact, it is 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. 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. For the above reasons, the Applicant’s leave application is refused.

16.  The Court does not have the Applicant’s contact address in his home country. The Order and Form CALL-1 are therefore sent to the Director of Immigration with a request that the Department will use its best endeavor to forward them to the Applicant.

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