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

HCAL 31/2019

[2023] HKCFI 1037

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 31 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;

1.  The withdrawal application for leave to apply for Judicial Review refused;

2.  Leave to apply for Judicial Review 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 / Non-refoulement Claims Petition Office (the “Board”) dated 27 December 2018 (the “Decision”) refusing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Further Decision dated 20 December 2016 (the “Further Notice”).

2.  The Applicant is a national of Pakistan. He arrived in Hong Kong on 11 November 2015 and was refused entry. Thereupon he raised a non-refoulement claim by way of written representation. In gist, his claim is based on his fear of being harmed or otherwise ill-treated by his customer, Sohail, who is associated with the Pakistan Muslim League (Nawaz) (“PML(N)”).

3.  In due course, his non-refoulement claim was assessed on three applicable grounds then available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3]. By his Notice of Decision dated 29 January 2016 (the “Notice”), the immigration officer rejected his claims on all three grounds. He assessed the Applicant’s claim on the basis of the factual case as he asserted. He found, inter alia, that the Applicant would not be subjected to ill-treatment on return to Pakistan; that Sohail’s sphere of influence did not extend to the whole of Punjab, let alone the whole Pakistan; that the Applicant would be able to obtain police protection and that he could further avoid the risks by internal relocation. The Applicant did not appeal. Thus, the Director’s finding of fact in the Notice became final.

4.  On 3 November 2016, the Director invited the Applicant to submit any additional facts relevant to his non-refoulement claims on all applicable grounds, including BOR 2 Risk[4], which then became available under the USM. The Applicant did not respond. Despite having been granted an extension of time, he still did not submit any additional facts. On 20 December 2016, the Director issued the Further Notice refusing his claim for non-refoulement protection under the BOR 2 Risk ground.

5.  The Applicant appealed to the Board against the Further Notice. The Board dismissed his appeal. In essence, the Board found that the Director’s finding in the Notice is final and in the absence of further evidence to substantiate his claim that he faces a BOR 2 Risk if he returns to Pakistan, the Board considered that any harm which might befall the Applicant at the hands of Sohail because of a monetary dispute to be low. In any event, the Board was also satisfied that the Applicant could access internal relocation to avoid that risk, if it materialises. It therefore found the Applicant failed to establish his claim under BOR 2 Risk ground.

6.  The Applicant now seeks leave to seek judicial review of that Decision. He 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 that the application may be justly determined on paper without an oral hearing. On 13 February 2023, the Court informed the Applicant by letter that a decision relating to his leave application will be ready for handing down in the end of March 2023.

7.  On 16 February 2023, the Applicant applied by summons to “close” his case and attached a Hong Kong Identity Card. As the Court was not satisfied that his application to withdraw the leave application was freely made with understanding of its consequences, directions were given requiring the Applicant to file an affirmation stating whether his dispute with Sohail has been resolved; whether he still anticipates any real chance that he will be harmed or otherwise ill-treated by Sohail; that he applies to withdraw the leave application out of his own free will; and that he understands that if his application for withdrawal is allowed, the Board’s Decision shall be final. He was also advised that if the affirmation is not filed as directed, his leave application may be determined on paper. As at the date of this decision, he had not responded. The Court therefore considered it appropriate not to consider his application to withdraw and to consider his leave application on paper as it had indicated.

The applicable legal principle

8.  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 of application

9.  The Applicant lodged a statement of his grounds for judicial review consisting of 33 pages. It contains submissions of the law, quotations from authorities, criticism of the non-refoulement protection scheme or the USM, complaint about lack of training for immigration officers responsible for assessing non-refoulement claims, etc. Insofar as those grounds touch on errors of law, procedural unfairness and irrationality, they are mere assertions and lacking in particulars. In the absence of proper grounds of review, the Court could only focus on errors of law, procedural unfairness and irrationality.

Discussion and conclusion

10.  The Board’s Decision revolve around a very narrow compass, ie the BOR 2 Risk ground. 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. It assessed the Applicant’s claim under BOR 2 Risk ground on the basis of the assessment and finding of fact by the Director in the Notice in respect of the other three Risks which in turn is based on the Applicant’s factual case as he asserted. In addition, on the basis of authoritative and credible country of origin information, it also found that the Applicant could access internal relocation to avoid any possible risk. Those assessments and finding of fact which the Applicant did not appeal have become final. It was on the basis of those assessments and finding of fact and the absence of evidence from the Applicant in support of his claim under BOR 2 Risk ground that the Board found that the Applicant is not entitled to protection under that ground. That Decision is a mixed finding of law and fact. Insofar as it is a finding of fact, it is based on the finding of facts by the Director in his Notice which had become final. These are finding of fact solely within the realm of the Board which the Court in a judicial review will not interfere save for on errors of law, procedural unfairness and irrationality. Insofar as that Decision is a finding of law, the Court could find no error in the Board’s application of the law to the fact found. The Court could detect no error of law in the Decision. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The proposed judicial review has no realistic prospect of success.

11.  For the above reasons, the Applicant’s application to withdraw his application for leave to apply for judicial review and his leave application are 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

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