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HCAL 2631/2018
[2022] HKCFI 2181
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2631 of 2018
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Ali Qasim |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
INTRODUCTION
1. This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 8 November 2018 (the “Decision”).
2. The Applicant is a national of Pakistan, now aged 35. He entered Hong Kong on 29 July 2008 illegally and was arrested by the police on 31 July 2008. On 7 August 2008, he raised a torture claim which was later converted to a non-refoulement claim.
3. 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]. By a Notice of Decision dated 3 February 2017, the Director rejected his claims under all four applicable grounds.
4. He appealed to the Board against the decision of the Director in the Notice. By its Decision dated 8 November 2018, the Board dismissed his appeal. On 22 November 2018, he applied for leave to apply for judicial review of the Decision of the Board. The Applicant did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.
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 (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claimed that he would be killed by Farooq, the village head of his home village, because of a land dispute, if he is refouled to Pakistan.
6. The Applicant was born in a village in Jhelum, Pakistan. He received eight years of formal education and worked as a hair dresser for two years in Pakistan. He is single and his family used to reside in Pakistan and Europe.
7. His late father bought a piece of residential land of about 10 kanals (the “Land”) for about 1 million Pakistani Rupees in late 2005. His family planned to build a new house on the Land in 2006. One day, he and his family visited the Land to prepare for building the new house. Farooq arrived at the Land with four or five men and claimed ownership of the Land. Farooq warned them they would be responsible for the things to happen if they insisted on claiming ownership in the Land. Farooq and his men arrived at the Land again about a week later, they were armed with wooden sticks. Farooq told the Applicant to stop the construction. The Applicant’s family halted the construction as Farooq was powerful in the area. They made a report to the police but the police did not take any action. The Applicant suspected it was because the police was under Farooq’s influence.
8. In mid-2007, Farooq’s men slapped and kicked the Applicant for around two minutes on the Land. They claimed that was just a warning and they would take further actions if the Applicant insisted on claiming ownership of the Land. The Applicant suffered bruises and swellings all over his body but the injuries were not too serious.
9. One week after the attack, the Applicant saw one of the assailants on the street. The Applicant and his friends attacked him for two to three minutes. The Applicant was arrested by the police and detained for four to five hours. He was charged with assault but after a mediation between Farooq and some villagers, Farooq withdrew the complaint and the case against the Applicant was dismissed.
10. After the Applicant was released from the police station, he was beaten by Farooq and his men on six to seven occasions. In early 2008, Farooq threatened to kill him if he resumed the construction. He also asked the Applicant to transfer the ownership of the Land to him. On his father’s advice, the Applicant left his home village and moved to his uncle’s place. He learnt from his father that his friends were arrested and tortured by the police at the command of Farooq because Farooq wanted them to disclose his whereabouts.
11. For fear of his safety, the Applicant fled to Hong Kong. After he had come to Hong Kong, he learnt from his family that Farooq kept threatening his family and demanded that nothing should be built on the Land. His father transferred the ownership of the Land to the Applicant and passed away in 2015. Farooq knew about this transfer.
12. The Applicant confirmed that his father, the owner of the Land, was never attacked by Farooq. Farooq was a supporter of the Pakistan Muslim League-Nawaz (PML-N) and had a good relationship with the PML-N and Raja Zuamurad who is a Member of National Assembly of Taniawala. Farooq had not produced any documentary proof to support his claim to the Land.
The finding of the Board
13. The Applicant testified before the Board. The Board found his oral testimony to be “vague and unpersuasive” and was not satisfied with the truthfulness of his claims. It noted that the Applicant was unable to recall the details of basic issues such as the purchase price of the Land, the identity of the seller of the Land and his previous encounters with Farooq. The Applicant told the Board that the seller of the Land “did a fraud” by selling the Land to two people and that he made up the name of one of the buyers as Farooq so as to strengthen his case[5]. In stark contrast with his relatively detailed written claims in the NCF, his oral testimony was vague. The Board held that, notwithstanding the passage of time, if his claims were true, he could not have failed to recall the details at the oral hearing.
14. The Board was not satisfied that the Applicant or his father was involved in a land dispute with Farooq or with any other person, or that he was detained or attacked because of a land dispute. The Board found that he came to Hong Kong for reasons entirely unrelated to those he put forward in his application for non-refoulement protection.
15. The Board held that the Applicant had failed to adduce sufficient evidence to establish the factual basis of his claim for protection under any of the four applicable grounds under the USM. It therefore upheld the decision of the Director in the Notice and refused the Applicant’s appeal.
The legal principles applicable to judicial review
16. The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6]. Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.
Grounds for judicial review
17. The Applicant did not put forward any grounds in his Form 86. In his supporting affirmation, he reiterated that he was not satisfied with the Decision of the Board and his life is not save in his own country. He had been invited by the Court via its letter dated 10 February 2021 to advise the Court of his first language, contact number and to file submissions. He did not respond. The letter was sent by post to his address as stated in his Form 86 filed on 22 November 2018. It has not been returned through the post. He never informed the court of any change of address. There is nothing to suggest that he had not received the letter or had moved.
Discussion
18. In the absence of specific 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. The essence of the Applicant’s complaint is that he is not satisfied with the Decision and it is not safe for him to return to his home country. In effect, he is seeking to challenge the Board’s finding of fact that he had failed to prove the harm and risk of harm he would face upon his return to Pakistan.
19. 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 burden of proof and standard of proof; and observed a very high standard of fairness. In essence, the Board found him incredible and rejected his evidence. As the claimant, he bore the burden of proving his entitlement to. It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM. This is a finding of fact solely 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. The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. 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.
Conclusion
20. For the above reasons, leave to apply for judicial review was refused.
Dated the 20th day of July 2022
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( Allen LEE )
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 20/7/2022
Ali Qasim
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 20/7/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6186/17/2/185/P1335
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 496/09 (formerly RBCZ 2132/08)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[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] Paragraphs 30, 36 and 37 of the Decision
[6] [2018] HKCA 524 at para 14(1)
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