ATIF MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1056/2019

[2023] HKCFI 2380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1056 of 2019

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;

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 18 April 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 12 April 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 15 February 2019 (the “Notice”). He had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the Notice, the papers, and all the circumstances, the Court considered the application may be justly determined on paper without an oral hearing.

2.  The Applicant is a Pakistani national, now aged 32. He entered Hong Kong illegally and was arrested on 6 October 2018. On 10 October 2018, he raised a non-refoulement claim. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4]. His claim was dismissed by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims that he is a Sunni Muslim and supporter of Tehreek-e-Isaaf (“PTI”) and will suffer harm from members of the opposing political party Pakistan Muslim League (Nawaz) (“PML(N)”), if refouled back to Pakistan. His fear of harm is founded on five incidents.

4.  The Applicant was born and raised in Khari Shariff, Azad Jammu and Kashmir, Pakistan. He is of Rajput ethnic group and his religion is Sunni Islam. He is single. He attained Class 4 in High School and had 8 years of working experience as an electrician.

5.  The first incident occurred a few months after PML(N) won an election in July 2016. Around 10 PML(N) members, including a police officer named Razzaq, celebrated their victory outside the Applicant’s house. They fired shots at his door for around 10 minutes. When the Applicant intervened, they hit him with the handle of their guns for several minutes causing serious internal injuries and injuries to his shoulder, back and thigh and loss of consciousness. He was hospitalized for a month and it took him two more months to recovery after his discharge from hospital. He made a report to the Afzaal Pur Police Station, but the officer did not register his complaint.

6.  The second incident took place around late 2017 or early 2018. As he and his two PTI friends were coming out of the mosque, he saw five PML(N) members, including Razzaq, preaching Shia doctrines outside the mosque. He demanded them to stop which led to a physical altercation. He did not sustain serious injuries from this incident.

7.  The third incident occurred one day in 2018. While he was working in a shop in Islamabad, a PML(N) supporter suddenly threw a bottle of acid at him causing serious injuries to his right thigh. He received cleaning and bandaging in Noori Hospital where he was hospitalised for around 15 days. He did not report the incident because he believed the police would side with PML(N) supporters. His friend, Danyaal took him to Lahore for six months to recover.

8.  The fourth incident occurred one day after his return from Lahore in 2018. Some PML(N) members came and fired at his house killing two buffalos.

9.  The fifth incident occurred one day later that year while he was working in a restaurant in Peshawar, five PML(N) members came and beat him up with wooden sticks causing him bruises and swellings. He was treated by a private doctor.

10.  Then, the Applicant moved to stay in Karachi and other areas until his friend Danyaal advised him to leave Pakistan and arranged for his passage to Hong Kong. Danyaal sold his own land and paid 850,000 rupees for his passport, China visa and air ticket. The Applicant reckoned that the Pakistani authorities cannot and will not offer him protection and internal relocation is not feasible because his enemies can locate him anywhere in Pakistan via PML(N)’s network.

The finding of the Board

11.  In his letter to the Board dated 4 March 2019, the Applicant wrote:

“… I request board to make my decision without a hearing as I don’t want a hearing to be held … I have nothing eles (sic) to say …”

As per his request, the Board considered his appeal on paper without holding an oral hearing.

12.  The Board found the Applicant’s case was “fatally tainted with numerous vagueness” (original emphasis) which are completely unexplained and could not be resolved. The Board identified certain unsatisfactory aspects of his case, such as the lack of documentary support for the seriousness of the alleged injuries or for the treatment and the imprecision as to when the incidents occurred. It considered the Applicant’s evidence so woefully vague to which it could place no credence. It had doubts about the Applicant’s credibility and the credibility of his evidence. The Board reckoned that issues of credibility should not be decided without hearing from the Applicant. But as the Applicant chose not to have a hearing, it proceeded to determine his claim without inviting him to attend an oral hearing. It held that the Applicant had failed to prove his entitlement to non-refoulement protection and dismissed his appeal.

13.  Then, by way of Addendum, the Board further considered the appeal under the four applicable grounds on the basis of the Applicant’s case as he asserted without querying his credibility. For the following reasons, the Board found that the outcome would be the same.

14.  To establish a Torture Risk claim, a claimant has to prove he suffered “torture” within the meaning of section 37U of the Immigration Ordinance, ie: (1) the claimant suffered severe physical or mental pain or suffering; (2) which was intentionally inflicted; (3) for the purposes of obtaining from the claimant or a third person information or confession, punishing him for an act he or a third person has committed or is suspected of having committed or intimidating or coercing him or a third person or for any reason based on discrimination of any kind; and (4) by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

15.  The Board found that the Applicant had failed to prove element (1) and (4). On his evidence, the Applicant suffered serious internal injuries and injuries to his shoulder, back and thigh and loss of consciousness during the first incident which required one-month hospitalisation and two further months to recover. He had no expert medical evidence to support his claim of serious internal injuries and no documentary evidence to support his hospitalisation. The injuries he suffered in the other incidents were not serious. There is no evidence that the assaults by the PML(N) members, even if true, were acts of the national government or were instigated or authorised by, or acquiesced by the national Pakistani government. The Applicant had never been arrested, detained or imprisoned in Pakistan nor had any of his family members or close friends and was free to depart Pakistan via official immigration channels without problem. All these facts suggest he was not targeted for torture by the government.

16.  On the basis of authoritative and credible country of origin information (“COI”), which the Applicant did not challenge, the Board accepted that adequate systemic state protection is available in Pakistan. It was only the Applicant who chose not to access state protection. Furthermore, even on his own evidence, he had not encountered any hostility while living in Lahore and in Karachi. He was safe outside his home town. In view of his young age and work experience, it would not be harsh or unreasonable to expect him to relocate within his home country to avoid the risk of harm.

17.  To establish a BOR 3 Risk claim, a claimant has to prove substantial grounds for believing that he will suffer severe ill-treatment, if refouled; and that state protection is not available. The threshold for proving severe harm is very high. For reasons as stated in Paragraph 15, even accepting his evidence in total, the Applicant’s evidence fell far short of proving risk of severe ill-treatment, still less a well-founded fear of such risk. Furthermore, the COI shows that state protection is available to protect him from such risk.

18.  BOR 2 Risk ground protects a claimant against arbitrary deprivation of life by his government and restricts the circumstances when a death sentence may be imposed. It is not the Applicant’s case that he had been given a death sentence. For reasons as explained in Paragraph 15, the acts of the PML(N) assailants were not necessarily acts of the Pakistan government or the state. On the Applicant’s own evidence there is no evidence that they were.

19.  To establish a Persecution Risk claim, a claimant has to prove a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and owing to such fear is unwilling to avail himself of the protection of his home country. Persecution means ill-treatment of a minimum level of severity by a perpetrator which is either the government or the populace, ie a sizeable portion of the population. A well-founded fear implies that there must be a real chance of such harm occurring and not a remote or speculative chance.

20.  For reasons as explained in Paragraph 15, the acts of the PML(N) assailants were not necessarily acts of the government as to make the Pakistan government the perpetrator of the persecution. The Board also found that a handful of PML(N) assailants does not come within the meaning of “populace”. Also, as explained above, there is no evidence of ill-treatment which attains the minimum level of severity and internal relocation is feasible. Hence, the Board found the Applicant failed to prove Persecution Risk ground even on his alleged version of events.

21.  The Board also found the Applicant’s thesis that all PML(N) members in Pakistan will be hunting him, who is a mere PTI supporter in a local village (not an official), all over Pakistan incredible. On the Applicant’s own evidence, he encountered nothing hostile for half a year in Lahore and Karachi which suggests that his risk of harm was localised and could be avoided by internal relocation. In that perspective, the Board found his reasons for departing Pakistan to seek non-refoulement in Hong Kong 4,700 kilometres away does not make common sense.

Legal principles applicable to judicial review

22.  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[5].

Grounds for judicial review

23.  The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, he only annexed a copy of the Decision. Understandably, he disagrees with the Decision or its finding of fact. In the absence of specific grounds of application, the Court in an application for judicial review 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.

Discussion and conclusion

24.  The Applicant did not want to hold a hearing and requested the Board to determine his appeal without one. The Board found his case was fatally tainted with numerous vagueness to which it could place no credence. As he requested to have his appeal determined without a hearing, the Board proceeded to make its Decision without holding a hearing. It held that the Applicant had failed to prove his entitlement to non-refoulement protection and dismissed his appeal.

25.  The underlying basis of the Decision is that the Board found the Applicant incredible. The Board reckoned that issues of credibility should not be decided without hearing the witness. It found the Applicant’s evidence woefully vague and insufficient to support his claim. Vagueness may be clarified and gaps filled by seeking clarifications and obtaining supplemental evidence from the Applicant, if such evidence is available. Thus, there may be a possibility that the Applicant may be able to make good his case. The Board must have known that his appeal was bound to be dismissed if he did not attend a hearing and answer the Board’s query or testify.

26.  While the burden of proving a claim rests fairly and squarely on the shoulder of the claimant, the Board is under the duty of joint endeavour to assist him in establishing his claim. The high standard of fairness requires the Board to bring to the Applicant’s attention the vagueness in his evidence and advise him the need to provide further information or evidence to make good his claim. If then, the Applicant still insists not to attend a hearing and provide further information, the Board has discharged its duty of joint endeavour and has discharged the high standard of fairness required. It may therefore be argued that in failing to draw the Applicant’s attention to the inadequacies of his evidence and invite him to attend an oral hearing the Board had failed to discharge the high standard of fairness.

27.  Though the Board did not invite the Applicant to attend an oral hearing, it did further assess his claim on the basis of the evidence as he asserted. It found, even accepting his evidence in total, his evidence still fell far short of proving his claim under any of the four applicable grounds. Primarily, the Board found he could not prove he suffered or there is a real risk that he would suffer injury or ill-treatment of a minimum level of severity for the purposes of proving the Torture Claim Risk, BOR 3 Risk and Persecution Risk grounds.

28.  The most serious injury allegedly suffered by the Applicant was the serious internal injury. The other injuries could not be regarded as having reached that minimum level of severity. The Applicant had confirmed in Answer 34 of his NCF and Answer 37 of the record of the screening interview that he had no further documents to submit. Therefore, he had no medical evidence to support his claim that he had suffered such serious internal injuries. Not being a medical expert himself, that aspect of his evidence is but a mere assertion which could not be accorded much weight. Thus, he has quite failed to prove that he suffered serious internal injury.

29.  Next, even assuming that the Applicant had been assaulted by PML(N) members, it does not necessarily mean that the PML(N) assailants were agents of the national government and their acts were instigated or authorised by, or acquiesced by the state. There is no evidence that they were. Indeed, there is evidence on which the inference that they were not could be drawn.

30.  For reasons as explained in Paragraph 18, BOR 2 Risk is clearly not engaged.

31.  The Board assessed the Applicant’s claim on the basis of the case as he asserted in total and without querying his credibility. The Applicant could not have any valid complaint on the way these findings of fact were made. In the circumstances, the need to hold a hearing to test his credibility was obviated. The Board could not be criticised for failing to discharge the high standard of fairness. These findings of facts are exclusively within the province of the Board to make, which the Court on a judicial review will not interfere, save when such finding involved error of law, procedural unfairness and irrationality. It was on this alternate basis that the Board found that the Applicant is not entitled as a matter of law and fact to non-refoulement protection under any of the four applicable grounds.

32.  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 relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and correctly identified the issues. The Court could not detect any error of law in the Decision (made on the primary and alternate basis) 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. The proposed judicial review has no realistic prospect of success.

33.  Accordingly, the application for leave to apply for judicial review 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