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

HCAL 1982/2018

[2021] HKCFI 987

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1982 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;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  The Applicant seeks leave to apply for judicial review of the decision (the “Decision”) of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 9 July 2018.  

2.  The Applicant is a Pakistani national in Punjab.  He is single and has two brothers and three sisters who are living in Pakistan.  He had been to Hong Kong as early as March 1998 and was the subject of a Deportation Order.  He last sneaked into Hong Kong “some time in 2014”. He was arrested on 22 April 2015 for possession of an identity card relating to another person.  He was convicted of possession of an identity card relating to another person and sentenced to 12 months’ imprisonment on 30 December 2015.  He was released on court bail in relation to the other two offences on 23 September 2016.

3.  In between his arrest and conviction, he made non-refoulement claims by way of three written representations dated 15 July 2015, 24 August 2015 and 31 August 2015.  He subsequently made an application to the Director of Immigration (the “Director”) for non-refoulement protection on all applicable grounds under the Unified Screening Mechanism (“USM”) by submitting a non-refoulement claim form dated 22 January 2016.

4.  The Applicant indicated that he was unable to attend the screening interview scheduled on 8 December 2016.  Instead, he submitted responses to a List of Questions (“LoQ”) sent by the Director.  He was given legal assistance and the completed LoQ dated 11 January 2017 was submitted by the Duty Lawyer Service on his behalf.

5.  Upon the Applicant’s request, a further screening interview was scheduled for him on 13 April 2017.  Again, he indicated that he was unable to attend.

6.  The Applicant was assessed on all four applicable grounds available under the USM, namely:

(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 (“Torture Risk”);

(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”) (“BOR 3 Risk”);

(3) risk of persecution by reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“Persecution Risk”); and

(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 (“BOR 2 Risk”)

7.  By a Notice of Decision dated 23 May 2017, the Director rejected his application for non-refoulement protection.  He appealed to the Board on 2 June 2017.  His appeal was dismissed by the Board on 9 July 2018.

8.  On 19 September 2018, he applied for leave to apply for judicial review of the Decision of the Board. His grounds of application as stated in his affirmation filed in support of the application on the same date are that the Decision was unfair and unreasonable.  But he did not give particulars.  In reply to the request from this court for submission, he replied on 23 June 2020 that he had no further submissions to make.

The Applicant’s immigration history

9.  The Applicant has an extensive immigration history in Hong Kong.  He first entered Hong Kong on 4 March 1998 under a certain identity as recorded by the Immigration Department. He overstayed and attempted to depart from Hong Kong on 28 March 2004 using another passport with a second identity.  He was convicted of the offence of breach of condition of stay and making a false representation to an immigration assistant.  He was deported to Pakistan on 8 September 2004 after serving his sentence of eight months’ imprisonment.

10.  On 19 March 2008, the Applicant was arrested by the police and found using a third identity for remaining illegally in Hong Kong.  He claimed he had departed from Pakistan to Mainland China and sneaked into Hong Kong from Shenzhen.  On 22 March 2008, he was convicted of the offence of illegally remaining in Hong Kong and breach of deportation order.  He was sentenced to 18 months’ imprisonment.  He lodged a torture claim on 21 May 2008.  He was discharged from prison on 19 March 2009. On 6 October 2009, he withdrew his torture claim.  He was deported to Pakistan on 30 October 2009.

11.  In 2014, he sneaked into Hong Kong again from Mainland China and was arrested on 22 April 2015 as mentioned in paragraph 2 above.  He was released on court bail since 23 September 2016.  The Applicant has no dispute about his immigration history before the Board.

The Applicant’s case

12.  The following is a summary of the Applicant’s case based on information provided by him in his non-refoulement claim form.  In essence, his case is that he is in fear of being harmed by the police and supporters of Pakistan Muslim League-Nawaz (“PML-N”) and Pakistan Muslim League-Q (“PML-Q”) in connection with his involvement with Pakistan People’s Party (“PPP”).  He claims that they will continue to target him for harm, including death, should he return to Pakistan.

13.  He became a member of PPP in 2004 and worked at the counter of the PPP office in his home area of Gujrat.  From around October 2004, members of PML-N and PML-Q came weekly to the PPP office where he worked and demanded closure of that office.  His colleagues left, but he did not.  The PML-N members then threatened him with death.

14.  In November 2004, he and three colleagues were attacked with wooden sticks and hockey sticks by PML-N and PML-Q supporters at the PPP office.  The attackers threatened them with death if the office was not closed.

15.  At around mid-day in January 2005, 10 to 12 people including members of PML-Q came to the PPP office armed with wooden stick and a pistol.  They damaged furniture and warned the Applicant and his colleagues that they would be killed if they did not listen to them.

16.  A week later, the Applicant moved to Lahore, which was three-hour bus journey from his home for his safety.  Then he departed Pakistan in March 2005 and came to Hong Kong.

17.  He made a torture claim in October 2009 but withdrew after he was told that PPP had won the general election in 2008.  In October 2009 he returned to Pakistan.  He had no problem being an active member of PPP until 2011.

18.  In 2011, the Applicant was threatened by members of PML-N and PML-Q by phone or in person.  He made report to the police.  The police carried out investigations but it was in vain. 

19.  He and his colleagues were intercepted by members of PML-N and PML-Q when they were travelling to Gujranwala for a PPP meeting.  They were attacked with wooden sticks and iron bars.  He reported to the police, but no one was arrested.

20.  Shortly after that incident, he moved to Karachi to stay with his uncle for his safety.  However, his attackers located him and threatened through his uncle on the phone to kill him.  The Applicant fled to Islamabad to stay with a relative.

21.  Again, his attackers threatened through his relative to kill him.  He made a report to the police but the police arrested him based on some false allegations of drug trafficking made by his enemies.  On four or five occasions during his detention, he was forced to sign admissions and assaulted when he refused.  Subsequently, his relative paid a huge bribe to the police to secure his release on bail. 

22.  After his release, he fled to Malaysia where he stayed for one and half years.  He returned to Pakistan in 2013 after he contracted Dengue fever.  After receiving treatment in Karachi, he returned to Gujrat and resumed his work at the PPP office.

23.  One evening in 2013, he was assaulted by seven to eight people from the PML-N and PML-Q.  Some of them were holding bamboo sticks, iron rod and at least one big knife.  The office was damaged.  He became unconscious.  His family sent him to Karachi where he was hospitalised for two months.  He made a report to the police station but no action was taken.  Then he fled to Hong Kong via China in around 2014.

The finding of the Board

24.  The Board assumed its first task was to make findings on primary facts in support of the Applicant’s non-refoulement claims.  Having considered the evidence in its totality, the Board had cumulatively significant concerns regarding the truth of the central aspects of the claims and evidence advanced by the Applicant.  The Board identified multiple significant anomalies which led the Board to conclude that the central aspects of the Applicant’s circumstances were not as he claimed.

25.  The Board found it an anomaly that it when the Applicant returned to Pakistan in 2004, his intention was only to remain there for six to seven months and then he sneaked into Hong Kong again.  When asked if he wanted to come to Hong Kong to work, he responded that he was.  When asked if that was his only reason for returning to Hong Kong in 2005, he said “yes”.  When asked if there was any other reason, he said “no”.  He made no reference to the 2004/2005 attacks or fears of future harm referred to in his written statement (“2017 statement”).  He was asked if anything happened during his 2004/2005 stay in Pakistan, he responded that “nothing happened”.  His answers cast significant doubt on the truth of his claims of attacks and threats in his 2017 statement. 

26.  The Board found significant discrepancies between his assertions in his 2017 statement and evidence before the Board regarding the attack on his journey to Gujranwala.  In his 2017 statement, he said that attack took place before he fled to Karachi, then to Islamabad and eventually to Malaysia.  Then after his return from Malaysia, there was a further serious attack which made him flee to Hong Kong in 2014.  But his evidence before the Board, he said that the attack on his journey to Gujranwala was the last physical attack he experienced in Pakistan.   His explanation for the inconsistency is that he was confused.

27.  The Board also doubted his claimed support for PPP.  The Board found that he did not demonstrate even a general understanding of the basic philosophy of PPP or an understanding or interest in Pakistani politics generally.  He even said PML-Q is the “United Nations Party”. 

28.  The Board was not satisfied that the Applicant had established that there are substantial grounds which support the conclusion that he will face a real risk of ill-treatment as claimed if he was returned to Pakistan.

29.  Principally for the above reasons, the Board did not accept that the Applicant has shown that the four risks are real or genuine.  Accordingly, the Board affirmed the Decision of the Director dated 23 May 2017 and dismissed the Applicant’s appeal.

Grounds of application

30.  The grounds of his application for judicial review as stated in his affirmation are that the Decision was unreasonable.  He did not particularise.  He repeated that his greatest fear is being harmed by members of the PML-N and PML-Q.  He said he had documents to support his claim but was prevented from producing them because he was in jail and could not ask his family to obtain the documents and then because of COVID-19.  The documents are medical reports in support of his injuries suffered during the attacks and police reports confirming his reports to the police.

31.  These are lame excuses which are obviously untrue.  According to his immigration history which he did not dispute, he was sentenced to 12 months’ imprisonment on 30 December 2015 in respect of the offence of using an identity card relating to another and was then discharged from prison on 23 September 2016 and released on court bail in relation to the other two outstanding offences pending his non-refoulement claims.  He had not been in custody since 23 September 2016.  In fact, the Commissioner of Police wrote to this court on 25 September 2020 enquiring the status of the Applicant’s application as he was due to report bail on 10 November 2020. 

32.  The true position is this.  The Applicant was discharged from prison on 23 September 2016.  He declined attending a screening interview schedule for him on 8 December 2016. Instead, he submitted the LoQ dated 11 January 2017 prepared by the Duty Lawyer Service on his behalf.  He had the benefit of legal advice in presenting his claims.  If he had any documents to support his claims, he should and would have referred to them in his LoQ.  He did not.  Then, he appealed to the Board on 2 June 2017.  In his Notice of Appeal, he said:

“… I have a false case against me in the Police. I want to show you some evidence. May a chance be given to me. I want to prove my case in the appeal.”

His concern then was the Pakistani police in Islamabad framing him up for drug trafficking charges.  The Board conducting the hearing on 4 June 2018. He had all the time between 23 September 2016 and 4 June 2018 to obtain whatever documents he wished the Board to consider and produce to the Board. COVID-19 has not struck Hong Kong yet.  There is no substance in his allegation that the hearing was unfair and the Decision was unreasonable because he was prevented from producing documents as he was in prison custody and because of COVID-19.

Disposition

33.  The role of the court in judicial review is not to re-assess the non-refoulement claim 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 [2018] HKCA 524 at [14(1)].

Conclusion

34.  I have rigorously examined the Board’s Decision, the papers, grounds of application and the Applicant’s submissions.  The Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM.  The Board had regard to legal principles and practices and section 37ZD of the Immigration Ordinance in assessing the Applicant’s credibility.  It took great care in analyzing the evidence.  It set out its reasons why it considered the Applicant not credible in eight pages.  It concluded that there was no factual basis to support the Applicant’s claim of fear and risk on which his claims for non-refoulement protection under the four applicable grounds are founded.  I find the Decision of the Board was utterly without

fault.  There were no errors of law or irrationality in its Decision or procedural unfairness. I find no substance in the grounds of this application.  Accordingly, the application is dismissed.

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