MUHAMMAD ARIF AMIN MUGHAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2937/2018

[2022] HKCFI 2723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2937 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;

1.  Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; 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 21 December 2018 for leave to apply for judicial review of a decision of the same date (the “leave application”). He did not identify the proposed respondent in the Form 86. In his affirmation filed in support of the leave application, he named the Immigration Department as the defendant and said he was not satisfied with the decision of the Torture Claims Appeal Board and the Immigration Department, but without identifying the decisions by date. Enquiries with the Torture Claims Appeal Board / Non-Refoulement Petition Office (the “Board”) revealed that there were two decisions made by Board relating to the Applicant dated 10 December 2013 and 24 September 2018 (respectively, the “2013 Decision and “2018 Decision”).

2.  In the non-refoulement context, the decision of the Board is reviewable by judicial process but not the decision of the Director in the notice of decision because there are established statutory procedures of appeal to the Board under section 37ZR of the Immigration Ordinance, Cap. 115 and the Applicant has invoked those procedures. At the time of the filing of the Form 86, the Director’s decisions in the notices had been superseded by the Board’s decisions. They are no longer susceptible to judicial review: Re Moshsin Ali[1]. Hence, the Applicant may apply for leave to apply for judicial review of the decisions of the Board only. Only the Board may be made the proposed respondent, but not the Director.

3.  Under section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review may be made within three months of the date of the decision sought to be reviewed. In AW and Director of Immigration and William Lam[2], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Merits is usually a very important factor. Where the delay is not very substantial, merits is usually the determinant factor. But as was held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[3], where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”.

4.  The 2013 Decision was made five years before the leave application was filed. An application to apply in respect of that decision is grossly out of time and will not be entertained under the principle in Po Fun Chan v Winnie Cheung. Hence, the only decision in respect of which the leave application may be made is the 2018 Decision. Accordingly, leave was granted to amend the Form 86 by naming the Board as the proposed respondent and its 2018 Decision as the decision in respect of which relief is sought.

Background

5.  The Applicant is a Pakistani national, now aged 56. He was arrested by the police on 22 February 2007. He claimed to have entered Hong Kong illegally in November 2006. He was subsequently convicted of the offences of using and possessing a forged Hong Kong identity card and illegally remaining in Hong Kong. He was sentenced to 15 months of imprisonment.

6.  On 11 June 2007, the Applicant raised a claim for protection under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT Claim”). That CAT Claim was dismissed by the Director’s notice of decision dated 18 June 2013 (the “2013 Notice”). His appeal against that decision was dismissed by the Board by its 2013 Decision. That decision became final.

7.  He then lodged a non-refoulement claim by written representation on 20 and 26 June 2013. Following the implementation of the Unified Screening Mechanism (“USM”), his claim was assessed under BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. By a notice of decision dated 10 April 2018 (the “2018 Notice”), the Director rejected his claim. He appealed. His appeal was dismissed by the Board’s 2018 Decision. He now seeks leave to apply for judicial review of the 2018 Decision. He did not request an oral hearing. Having considered the nature of the application, the issues raised, the 2013 Decision, the 2018 Decision, the papers, and all the circumstances, the Court considered it appropriate that the leave application be determined on paper without an oral hearing.

The Applicant’s case

8.  The following account of the Applicant’s case is mainly based on the information in the torture claim form (“TCF”) and supplementary claim form (“SCF”) prepared by him with legal assistance and the records of his screening interview in the presence of his lawyer. In gist, he claimed that he would be harmed by his creditors (the “Ali Brothers”) upon his return to Pakistan.

9.  The Applicant was born and raised in Lahore, Pakistan. He is married and has five children. He received eight years of formal education and has about 19 years of working experience as a salesperson.

10.  The Applicant used to work at Azmat Cables as a commission-based salesman. Azmat Cables was owned by five Ali Brothers, namely Ahmed, Rehmat, Azmat, Mansoor and Hashmat. Mansoor was a member of the Provincial Assembly of Punjab and had political affiliation with the Pakistani Muslim League-Q, a powerful political party in Pakistan. The Applicant mainly dealt with Rehmat. He took goods from Azmat Cables on credit for sale. He handed over the sales revenue to Azmat Cable and was paid a commission of 5-10%.

11.  In September 2005, the Applicant delivered goods worth 2.7 million Pakistani Rupees to his customers on credit. Unfortunately, a serious earthquake struck Kashmir on 8 October 2005 and many of his customers perished. He was unable to recover the sales revenue from them.

12.  The Applicant told the Ali Brothers about the earthquake and his inability to recover the revenue from his customers. Initially, they supported him. However, in April 2006, Rehmat gave him two months to pay. The Applicant explained that he could not come up with the money but was told to leave. During those two months he pleaded many times with the Ali Brothers. He offered to keep working for Azmat Cables at a lower commission and pay them back over time, but they refused.

13.  He sought help from the Ali Brother’s uncle, Hakim Ali, who was the commissioner of police in Lahore city. After a week, Hakim told him that the Ali Brothers insisted to have the money back. When the Applicant said he wanted to file a police report, Hakim intimidated him by asking him if he was aware of his position in the police.

14.  The Applicant then made a report at the local police station in Bhagwanpura but the police refused to entertain his complaint. Then he received a call from Hakim telling him that Hakim was aware of his visit to the Bhagwanpura police station.

15.  Since then, he was frequently harassed by the Ali Brothers almost every day in June 2006. On some occasions he was dragged out from his house and humiliated in front of everybody. On other occasions, he was beaten and tortured. The assailants were armed and they scared him. The harassment put a lot of pressure on the Applicant and his mental health deteriorated.

16.  One night in June 2006, Rehmat and about seven gangsters armed with guns went to the Applicant’s house to demand payment. They pushed him around and dragged him by his collars. They also insulted his wife verbally. The Applicant suffered some minor injuries such as bruises. He did not make a police report because of his previous experience.

17.  In a second incident, Rehmat and a group of gangsters fired blank bullets at the wall of the Applicant’s house. No one was injured during that incident. Rehmat told the Applicant that next time he would be killed. They returned a few hours later and shouted loudly that they would kill him for not paying. The Applicant and his family fled from his house the same night.

18.  After settling down his wife and children with his relatives in Village Liaqatpur, the Applicant went to hide away separately in Karachi. He arranged an agent to obtain a visa to travel to China. For fear that the Ali Brothers would use their influence over the immigration checkpoints to prevent his escape, he travelled by road through the Sost immigration checkpoint which did not have computer connection with the main server of the immigration authorities. He reached Mainland China and stayed there for about two and half months. He learnt about the non-refoulement protection available in Hong Kong from a friend and sneaked into Hong Kong.

19.  After arriving in Hong Kong, he learnt that Rehmat visited his elder brother in around September 2017 to ask for his whereabouts. His elder brother replied he did not know. The Applicant also learnt, through a friend, that the Ali Brothers filed a false police report about his involvement in planning the bomb attack at an amusement park called Gulshan-e-iqbal Garden in Lahore in March 2016. He claimed that the Ali Brothers were very influential and the police would accept the false report.

The finding of the Board

20.  The Board found there were “serious problems regarding credibility” in the Applicant’s CAT claim and dismissed his appeal against the Director’s 2013 Notice. That decision and the Board’s finding in that decision are final.

21.  The Applicant’s appeal against the 2018 Notice was heard by a differently constituted Board. The Applicant testified before the Board. The Board considered his evidence lacking in specifics, confused and inconsistent. It found him changing in his evidence. It also considered some of his evidence inherently improbable. After careful consideration, the Board came to the conclusion that the Applicant was not a witness of truth and that he fabricated his claims in relation to the debt he owed the Ali Brothers and their business. It rejected his evidence. The following are some of the problems with his evidence.

22.  The Applicant claimed that Mansoor was a member of the Punjab Legislative Assembly. When presented with the Country of Origin Information (“COI”) reports showing that no person by that name was ever elected to the Punjab Legislative Assembly, he said Mansoor had perhaps been a member of the national parliament. Then he toned down his evidence and said he had only been told that Mansoor was a member of the Punjab Legislative Assembly but it might not be true. The Board also did not accept his explanations for this discrepancy.

23.  Though the Board accepted that the Pakistani police force is corrupt, it considered the Applicant’s allegation that the police would simply accept the Ali Brothers’ assertion at its face value about his involvement in the major terrorist bombing in Lahore in 2016 and issue warrants for his arrest too “far-fetched”.

24.  The Board found the Applicant’s evidence about the ill-treatment he suffered at the hands of the Ali Brothers lacking in specifics and confusing. Instead of providing clarification he presented entirely new evidence.

25.  The Board noted in the TCF that the Applicant claimed to have lodged a complaint against the Ali Brothers with their uncle Hakim, but at the hearing he changed his evidence and said he had not done so because it did not make any sense. He then contradicted himself and said after one of the attacks, he sought help from Hakim; and that after another attack, he went to Gujarpura police station.

26.  The Board also rejected his evidence that he failed to secure a job to repay the Ali Brothers despite the serious threats made to him as inherently improbable.

27.  The Board therefore found that the Applicant had failed to establish the factual basis to support his claims based on any of the three remaining applicable risks under the USM. It also found in the further alternative that if the risks from the Ali Brothers became real, the Applicant could safely relocate to some other areas in Pakistan such as Karachi, Kashmir, Islamabad or Khyber Pakhtunkhwa (where he used to work) to avoid the risks. As an experienced salesperson, he could find a job in the retail business there and that it would not be unreasonable to expect him to so relocate. It also doubted whether the Ali Brothers were as powerful as to be able to locate the Applicant anywhere in Pakistan as he alleged, since they had been unable to locate his family members in Pakistan. Hence, the Board dismissed his appeal against the 2018 Notice.

The legal principle applicable to judicial review

28.  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].

Grounds and merits of the application for judicial review

29.  The only ground of application for judicial review advanced by the Applicant in his supporting affirmation is that he was not satisfied with the decisions of the Board and the Director because he did not want to go back to Pakistan. In effect, his sole ground is that he disagreed with the Board’s finding of fact that he had failed to prove the factual basis in support of his claim for non-refoulement protection under the BOR 2 Risk, BOR 3 Risk and Persecution Risk grounds, which is not permissible. In the absence of proper 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.

30.  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 issues; the burden of proof and standard of proof; and correctly identified the issues. The Board observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the remaining three 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.

Conclusion

31.  For the above reasons, the Applicant’s grounds are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. Accordingly, leave to apply for judicial review was 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