AZAM ADEEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 123/2022

[2022] HKCFI 2088

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 123 of 2022

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;

1.  Extension of time to apply for leave to apply for Judicial Review be refused; and

2.  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 filed on 8 February 2022 (the “Leave Application”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 22 September 2017 (the “Decision”) affirming the Notice of Decision of the Director of Immigration (the “Director”) dated 17 November 2016 refusing his application for non-refoulement protection (the “Notice”).  According to Order 53, rule 4(1) of the Rules of the High Court, this application is more than four years out of time.

2.  A hearing was scheduled for him on 12 May 2022, but he did not appear.  On 20 May 2022, the Court gave him directions by letter to file a statement within 14 days from the date of the letter stating his reasons for not attending the hearing and the more than four years’ delay in making the Leave Application.  He was also informed that his Leave Application will be determined on paper after 21 days from the date of the letter.  The Applicant replied by letter dated 6 June 2022 that he wished to withdraw his Leave Application and to return to Pakistan “as his problem there has already solved”.  In a subsequent letter dated 18 June 2022, he repeated his wish to withdraw his leave application.

Discussion and conclusion

3.  Despite the Court’s specific request, he did not give any explanation for the more than four years’ delay in making the Leave Application.  He has been sleeping on his rights.   This is precisely the type of case to which the dicta of Litton NPJ in Po Fun Chan v Winnie Cheung[1] applies.  For these reasons alone, the Applicant should be barred from pursuing his rights in a judicial review.

4.  The Applicant has a history of default.  He defaulted at the hearing before the Board on 18 July 2017 and did not respond to the Board’s notice inviting for an explanation for his default. Again, he defaulted at the hearing before this Court.  He had not withdrawn the Leave Application before the hearing.  Now, he expressed his wish to withdraw his Leave Application and confirmed that he wished to return to Pakistan as his problems there have been solved.  But no application for withdrawal has been properly made.  His letter only evinced he had no intention to prosecute his Leave Application. 

5.  The function of the Court in an application for judicial review is to intervene a decision of an administrative tribunal for error of law, procedural unfairness, and unreasonableness or irrationality in the decision.  Having rigorously examined the Decision, the Notice, the Form 86, his supporting affirmation and all the papers with anxious scrutiny, the Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success.  In the circumstances, it is appropriate that his Leave Application be dismissed for want of prosecution. 

Summary of the Decision and grounds of application

6.  By way of completeness, the following is a summary of the Applicant’s non-refoulement claim.  In gist, he claimed that he will be harmed by Iftikhar, Tariq and Zaheer (collectively, “the Trio”) and some other Sunni Muslims (collectively including the Trio, “his Enemies”).  Iftikhar and Tariq are members of Pakistan People’s Party (“PPP”).

7.  The Applicant is a national of Pakistan, now aged 38.   He entered Hong Kong on 26 November 2007 illegally and was arrested by the police on the same day.  He raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 8 December 2007 which was rejected by the Director on 21 September 2011.  That decision became final.  Following the implementation of the Unified Screening Mechanism (“USM”), his claim was also assessed on BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By a Notice of Decision dated 17 November 2016, the Director rejected his claim under the remaining three grounds.

8.  The Applicant was born in Rawalpindi, Pakistan. He is single and his family resides in Pakistan.  He and his family supported the party Pakistan Muslim League (Q) (“PML(Q)).  The member of PML(Q) are Shiya Muslims.

9.  In 2007, the Shiya Muslims in his village wanted to build a place of worship for Shiya Muslims (Immam Bargah) on a plot of land owned by the Applicant’s grandfather.  On 22 August 2007, they attended a kick-off ceremony for the construction work on the land.  However, nine of his Enemies arrived and told them to stop building for they were going to build their own mosque on the same site.  A fight broke out and lasted about 4 to 5 minutes, one of his Enemies fired shots and killed one and injured another of his father’s friend.  The Applicant fled the scene.  He did not know the names of the victims.

10.  His grandfather filed a First Information Report against his Enemies on the same day and told the police that the Applicant was one of the witnesses.  His grandfather did not give the names of other Shiya Muslims at scene.  The Trio then questioned his grandfather about the report and threatened his grandfather that the Applicant would be killed if he testified against them.

11.  On 23 August 2007, while the Applicant was in his shop, the Trio and three of his Enemies arrived at his home and threatened to kill him.  The Applicant went back home immediately upon receiving his father’s call about the incident.  While he was away from his shop, the Trio and his three of his Enemies went to his shop and broke the shop windows.  They left a message to the Applicant’s assistant that the Applicant would be killed if he testified against them.  The Applicant filed a First Information Report about the criminal damages with the Gujar Khan Police Station, but no action was taken by the police.

12.  On his parents’ advice, the Applicant moved to stay with his friend in Rawalpindi to avoid his Enemies. However, his Enemies came to his friend’s house and asked for his whereabouts.

13.  On 12 September 2007, the Applicant moved to Mirpur and stayed in a shrine.  However, his Enemies located him on 1 October 2007.   Some of them were armed with pistol or wooden stick. They punched him, kicked him and beat him with wooden sticks for about 5 to 7 minutes until the police and many people arrived.  The Applicant suffered open wounds on his head, right hand and left elbow, and his right ring finger was broken.  He received treatment in a hospital.  Despite he was advised to stay in the hospital for a few days, he left after a few hours for fear of further attacks.  He filed a First Information Report against his Enemies.  The police recorded his complaint but no action was taken.

14.  Starting from 5 October 2007, the Applicant stayed in a shrine in Karachi.  Again, his Enemies located him on 7 November 2007.  They fired a shot at him, but it missed.  Meanwhile, the police arrived and he made a report.  He told the police that he knew the men and offered to show the officers their whereabouts, but the police said that they would do it by themselves. 

15.  Thinking that his Enemies could locate him anywhere in Pakistan, the Applicant fled to Hong Kong on 15 November 2007.

16.  He said in his Supplemental Clam Form dated 5 September 2014 that on or about 24 August 2007, his Enemies went to his grandfather’s shop.  They renewed their threat to kill the Applicant if he testified and then shot his grandfather twice on the left thigh to deter his grandfather from testifying about the murder.  Subsequently, his grandfather fled to Dubai.

17.  The Applicant maintained constant contact with his family members once a week.  He learnt on 5 September 2011 that the Trio came randomly to his house to look for him and renew their threat to kill him. 

18.  On 17 August 2012, his Enemies set fire to his house as a lesson for his family ignoring their warning to change their religion.  His family members suffered injuries and were admitted to the Civil Hospital.  When his grandfather returned from Dubai to visit the Applicant’s family in the hospital, his Enemies shot and killed him.  His brother, Zeehan, gave a statement to the police, but police took no action.

19.  On 27 August 2012, Zeehan was attacked by his Enemies and suffered head injuries and fractures to his right arm and ribs.  He was hospitalised and disappeared.  His mother believed he was kidnapped by his Enemies.  She pleaded the Applicant not to return to Pakistan.  Since November 2012, the Applicant was unable and did not contact his family.

20.  The Applicant claimed that the Pakistani government would not offer protection to its citizen by taking action against corrupt police officers.  There were many cases of Shiya and Sunni attacks in his country and no action was taken by the government.  He said he could not avoid the risk by internal relocation as he and his family had already tried to relocate to multiple places but his Enemies could still locate them.  

The finding of the Board

21.  A hearing was scheduled for the Applicant to appear before the Board on 18 July 2017.  The notice of hearing was sent to his last known address.  He did not appear.  Pursuant to section 15 of Schedule 1A of the Immigration Ordinance and paragraph 11 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme, the Board gave notice to the Applicant of its intention to determine his appeal in his absence and invited him to provide a written explanation of his failure to attend the hearing.  The Applicant did not respond. 

22.  The Board noted the many major inconsistencies in the Applicant’s evidence in his questionnaire, representation and SCF which undermined his credibility and the credibility of his case.  Hence, it scheduled a hearing to give him the opportunity to explain the inherent improbability of his case.  As the Applicant did not appear at the hearing and did not explain his absence, the Board found he had failed to establish the credibility of his account and that there is a real chance or risk or substantial grounds for believing that the feared harm will materialize if he returns to his home country.  In other words, he failed to establish the factual basis in support of his entitlement to non-refoulement protection. 

23.  However, the Board went on to assess his claim on the assumption that his account was broadly true.  On his evidence, the Board found the injuries and ill-treatment he suffered did not attain the minimum level of severity as to amount to torture for the purpose of BOR 3 Risk[5]. As the shooting incident occurred in 2007, more than 10 years had lapsed, the Board held that the “chances that [the Men] would now risk resurrecting an incident in which they were involved in murder (allegedly) by seeking to harm the [Applicant] are remote”[6].

24.  In relation to persecution risk, the Board found that the alleged fear of harm, even if genuine, arose out of a personal dispute between the Applicant and his Enemies and not for reasons of race, religion, nationality, membership of a particular social group or political opinion.  It therefore did not fall within the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

25.  The Board found the Applicant had failed to adduce any evidence to establish a personal and real risk of being arbitrarily deprived of his life as to entitle him to protection under BOR 2 Risk ground.

26.  On the basis of credible Country of Origin Information (“COI”), the Board was satisfied that state protection is available and the Applicant has failed to show that there is a history of him being denied protection by the state[7].  As for internal relocation, the Board noted that as an able-bodied adult of some thirty years old, it would not be unduly harsh or unreasonable to expect him to relocate to other parts of Pakistan.

Grounds for judicial review

27.  The Applicant advanced six grounds for judicial review in his Form 86.  These are considered below.

Ground (1) – He believed the Board reached the Decision wrongly; the Decision was not reasonable and fair as required by the Wednesbury test

28.  This is a complaint that the Decision is irrational.  However, the Applicant did not give any particulars of the unreasonableness or unfairness alleged.  The Court would reconsider this complaint of irrationality in its overall scrutiny of the Decision.

Ground (2) – The Director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence”

29.  The Applicant alleged under this ground that he was “tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles”.  The Board considered this issue in paragraphs 60 to 68 of the Decision.

30.  The only evidence that the Applicant could possibly rely on as support for his argument is his allegations that Iftikhar and Tariq are members of the PPP; Iftikhar was a nasim of the local authorities and Tariq was a member of the provincial assembly.  Not only was there no proof of these allegations, the evidence was that when they and his Enemies approached the Applicant or his family over the various occasions, they were not accompanied by the police.  Indeed, during one of the assaults on the Applicant, his Enemies fled upon arrival of the police.

31.  There was no evidence of maltreatment of the Applicant by the Pakistani government or anyone in official capacity or evidence of instigation or connivance on the part of the police.  The Applicant was never arrested, detained or imprisoned in his home state.  He was able to leave Pakistan freely from official immigration channel using his passport indicating that he was not a target or person of interest to the Pakistani government.

32.  The only other possible evidence which the Applicant could rely on is his allegation of inaction by the police to his or his family’s complaint.  However, the police did acknowledge their complaints and issued First Information Reports.  The Applicant complained that no arrests were made.  On the other hand, there was no follow up by the Applicant either.  He did not really know what action the police had taken or failed to take and the reason for not taking action.  He mentioned about the police declining his offer to locate his Enemies.  But the evidence was not that the police refused to entertain his complaint.  His evidence was that the police officer said they would do that themselves.  Then, the Applicant fled Pakistan and he did not follow up. 

33.  It is possible that the police had not been effective or efficient as acknowledged in the COI.  On the other hand, there are COI suggesting that the situation is improving in Pakistan and there are avenues for complaint against police abuses.  The Applicant never complained to the higher authorities or the Ombudsman against his alleged police inaction.  The evidence is far from being sufficient to suggest, let alone to support, his allegation that his injuries or ill-treatment were inflicted by his Enemies with the authority, consent, connivance or acquiescence of the police or the authority.

Ground (3) – The Board acted unreasonably and committed procedural unfairness by placing too much weight on COI unfavourable to the Applicant and ignore those which support the Applicant

34.  The essence of the Applicant’s complaint is that the Board failed to take into account his personal background and experience and failed to give enough weight to COI supporting his claim that the police will not protect him. 

35.  In substance, this ground is a challenge of the Board’s finding of fact.  The COI relied on by the Director to which the Board referred are all from official, authoritative and credible sources. The Board had carefully considered the information.  As for the weight to be given to the COI, it is a matter for the Board having regard to the nature of information, the circumstances the information was obtained etc.  It is a finding of fact solely within the province of the Board, which the court in a judicial review will not interfere unless the finding involved errors of law, procedural unfairness or irrationality.  The Court would reconsider this ground in its overall scrutiny of the Decision.

Ground (4) – “The Adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by me & unreasonably requires me to response to questions that I was not in a position to offer any response.  The Adjudicator failed to take into account the nexus of political parties & official corruption which exists in my country, making the persecution effectively persecution by the State.”

36.  This ground is quoted in its entirety.  It was probably copied from a template which had no bearing to the facts in this case because the Applicant did not appear at the hearing and never answered or made to answer any questions from the Board.  To the extent that this ground is applicable to the facts of this case, it is a challenge of the Board’s finding of fact, which the court in a judicial review will not intervene except the finding involves errors of law, procedural unfairness or irrationality.   The Court would reconsider this ground in its overall scrutiny of the Decision.

Ground (5) – The Director “failed to take such argument into account” or “give enough weight to such argument before reaching the Decision”; this is “a clean case of unfair attitude”; “failed to attain the high standard of fairness required by the Wednesbury test”

37.  The Applicant gave no particulars of “such argument”, or “unfair attitude” or the failure to attain the high standard of fairness.  Furthermore, giving weight to evidence and arguments and making finding of fact are the functions exclusively for the Board.  The Board alone assesses the evidence and makes finding of facts, which the court in a judicial review will not intervene, unless such finding involves error of law, procedural unfairness or the Decision is irrational.  The Applicant’s complaint under this ground would be reconsidered in the Court’s overall scrutiny of the Decision.

Ground (6) – The Decision was irrational as the Board should have allowed his appeal

38.  This ground is a replication of Ground (1), in respect of which the Applicant gave no particulars.  In substance, this ground is a challenge of the Board’s finding of fact, which the court in a judicial review will not interfere unless the finding involved errors of law, procedural unfairness or irrationality. The Court would reconsider this ground in its overall scrutiny of the Decision.

Overall scrutiny of the Decision

39.  The Court was satisfied that there was no error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  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 and irrationality.  There were no such vitiating elements in the Decision.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  There are no merits in the intended application for judicial review.

40.  The application for leave to apply for judicial review is late for a very substantial period.  The Applicant has no reasonable explanation for the delay; the substantive application has no realistic prospect of success; the Applicant will suffer no prejudice if extension is not granted but the proposed respondent will suffer serious prejudice if extension is allowed; and the application does not raise any questions of general public importance.  All these considerations point against granting extension of time.  Accordingly, the Applicant should not be granted an extension of time to enable him to file this application.  His application must be 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] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ

[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 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[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

[5] [47] of the Board’s Decision

[6] [71] of the Board’s Decision

[7] [92] of the Board’s Decision