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

HCAL 1039/2022

[2024] HKCFI 3093

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1039 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 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 3 October 2022 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 28 September 2022 (the “Decision”), dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 11 May 2020, refusing his application for non-refoulement protection.

2.  The Applicant is Pakistani national. He surrendered to the Immigration Department on 4 November 2019 claiming he had departed Pakistan on 11 October 2019 and arrived Guangzhou, Mainland China by air on the same day and then he entered Hong Kong illegally on 1 November 2019. He made a non-refoulement claim by written representation dated 4, 18, November and 16 December 2019. In gist, he claims if returned to Pakistan, he will be harmed or killed by people from the Pakistan Muslim League (Nawaz) political party (“PML(N)”) because of his association with the Pakistan Tehreek-e-Insaf political party (“PIT”) and his refusal to quit PIT to join PML(N).

3.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s decision in the Notice. His appeal against the Director’s decision was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.

4.  The Applicant was born in Attock District, Punjab. He is single and now aged 37. His father died in 2011. He lived with his mother, brother and two sisters in Jalalia. He had received ten years of formal education and had worked as a farmer on his family land in Jalalia. His sister, Alia, married Imran the nephew of Safdar in 2015 or 2016 and he was engaged to Safdar’s daughter in 2017 or 2018. Safdar is an influential supporter of the PML(N) and lives in Rawalpindi, but his influence extends to Attock. The Applicant does not know anything about Safdar.

5.  The Applicant said that in 2017 he received calls from Safdar’s gangs threatening to harm him unless he stopped supporting the PTI and to support PML(N) instead. He had not personally encountered Safdar, but Safdar’s nephew, ie the Applicant’s brother-in-law, exerted pressure on him to join PML(N) through his sister by assaulting and ill-treating her. Subsequently his brother-in-law divorced the Applicant’s sister. PTI won the election in 2018.

6.  In March 2019, after the Applicant’s return from Azerbaijan, Safdar’s gangsters shot at the Applicant’s home and killed his aunt, while his mother and sisters escaped (the “first incident”). The gangsters called him shortly afterwards and warned him not to report the incident to the police otherwise they would kill all of his family. The Applicant said that Safdar’s gangsters attacked his home because he ignored their request to support the PML(N) before the election.

7.  Following the attack, the Applicant and his family moved to Attock to avoid Safdar’s gangsters. He told his fiancée his location in Attock and she visited him. One day, Safdar’s gangsters came to the place where they were staying and assaulted him, his mother and his three siblings. They fired shots and hurt his right angle (the “second incident”). He suspected Safdar’s gangsters located him by following his fiancée. Two days later, he made a report to the police, but the police refused to file his complaint. He believed that was because the police were corrupt and would not protect people involved in political violence.

8.  Out of fear for his safety, the Applicant flew to Mainland China and then sneaked into Hong Kong. The other members of his family moved back to Jalalia. He was told by his family that his political opponents were still harassing them. He does not believe he could relocate elsewhere in Pakistan as Safdar’s gangsters would able to find him as they did previously.

The finding of the Board

9.  The Applicant testified before the Board and advanced a new fear of harm arising from a land dispute with Safdar. He said that his family and Safdar were relatives. One day Safdar telephoned them and came to their home to ask for the land on which his family farmed. His explanation for not having mentioned the land dispute in his NCF was that the dispute assumed more importance since his arrival in Hong Kong.

10.  He also gave inconsistent evidence about the two incidents. In his NCF, he said the first incident took place after his return from Azerbaijan in March 2019 and the reason was his refusal to support the PML(N). However, he told the Board that the first incident happened around election time in 2018 when his aunt was killed and the reason for the attack was the land dispute. Another minor inconsistency is that he said in his NCF that his mother and sisters managed to escape and that other than his aunt who was killed no one else was injured. But he told the Board that his mother and sisters were assaulted and his mother suffered a head injury.

11.  As for the second incident, he told the Board that it occurred after his return from Azerbaijan, which was the time when the first incident occurred according to his NCF. He said as he was leaving his village he was followed and then attacked by Safdar and his gangsters. They shot and injured his ankle. Except for the timing and the injury at his ankle, this account is totally different. Contrary to his account in his NCF, it did not occur in Attock, he was not located by Safdar following his fiancée, there was no raid on the family and no assault on his mother and three siblings. It was after this attack that the Applicant and his family moved to Attock. He never saw Safdar and his gangsters thereafter. In short, except for the injury at his ankle arising from a different attack, the second incident which he described in his NCF never occurred. When confronted with the inconsistencies, the Applicant confirmed that his testimony before the Board was the truth. His explanation for the inconsistencies was that the incident happened a long time ago and he was not feeling mentally well at the hearing before the immigration officer.

12.  The Applicant could not provide a consistent account of the incidents in which he claimed he or his family were harmed. His account changed with time. He was unable to explain the serious and significant discrepancies in his account of the events. That led the Board to the conclusion that he was not a credible witness and that he concocted his evidence to advance a claim for protection. He had failed to establish the factual basis in support of his claim.

13.  Hence, the Board dismissed his appeal and affirmed the decision in the Director’s Notice.

Legal principles applicable to judicial review

14.  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

15.  The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affidavit, he annexed a copy of the Board’s Decision and said it contained a lot errors, but did not identify the errors or give particulars as to what was wrong with the Decision. At the hearing, after the principles in the above section was explained to him, he said he had no complaint but leave it to the Court to examine the Decision and look for errors of law, procedural unfairness and irrationality in the Decision. His only complaint is that the situation in Pakistan is very difficult, PTI supporters are being persecuted, that Safdar’s gangsters are threatening his family and that they only managed to avoid harm by relocating. 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.

Discussion

16.  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 rejected his evidence. This is a finding fact solely within the realm of the Board. 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 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 involved error of law, procedural unfairness and irrationality. 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. Accordingly, the Applicant’s application for leave to apply for judicial review is refused.

Conclusion

17.  For the above reasons, this leave application is refused.

18.  For the record, on the date of the hearing of this application, there was another applicant under HCAL 1131/2017 with an identical name but a different RBCL number claiming himself to the Applicant in this case seeking to reopen his leave application. The application of that other applicant was heard on the same day separately and disposed of.

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

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