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HCAL 2687/2018
[2021] HKCFI 1664
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2687 of 2018
BETWEEN
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Aamir Ali |
Applicant |
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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 refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 7 November 2018 (the “Decision”).
2. The Applicant is a Pakistani national. He entered Hong Kong illegally on 10 March 2017. He was arrested by the police on 14 March 2017 and referred to the Immigration Department. On 16 March 2017, he applied for a non-refoulement protection claiming that he is in danger of being harmed or killed by his elder brother and uncle.
3. In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4]. By a Notice of Decision dated 30 April 2018 (the “Notice”), the Director of Immigration (the “Director”) rejected his claims. He lodged an appeal to the Board against the decision of the Director in the Notice. His appeal was dismissed by the Board’s Decision dated 7 November 2018.
The Applicant’s case
4. The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form (“NCF”) which was prepared by him with assistance of the Duty Lawyer Service.
5. The Applicant was a Sunni Muslim. He fell in love with a girl (the “girlfriend”) from a neighbouring Muslim family of the Shia sect which moved into his village in about January 2011. Because of their relationship, he changed his religion to the Shia sect. Because of the difference in their religions, the parents of both families objected to their relationship and marriage. To avoid the interference of their parents, the Applicant and his girlfriend left their families and went to Lahore city.
6. A week later, his brother and uncle and his girlfriend’s parents, saw them in Lahore city and attempted to assault the Applicant, but he managed to escape. However, they took his girlfriend back to their village.
7. The Applicant returned to the village. He met his girlfriend and planned to escape. About a month later, they were intercepted when escaping. The Applicant was shot in his belly and assaulted by two to three men. His girlfriend was taken away. After the assailants left, the Applicant called for help from his younger brother. His younger brother took him to his friend’s place and treated his wound. After he recovered, he went to work in Saudi Arabia and stayed there for about four and a half years.
8. The Applicant returned to his village in 2017 and stayed in his younger brother’s place. His younger brother told him that his elder brother had occupied his house and refused to return it to him. His uncle was very angry with the Applicant for not changing back to Sunni sect. He threatened to kill the Applicant. Then, the Applicant fled to Hong Kong.
The finding of the Board
9. The Board found significant inconsistencies between the Applicant’s evidence in the NCF and that at the oral hearing before the Board. The Applicant stated in the NCF that his girlfriend was called Rizwana Bano but at the hearing he said she was called Rizwana Bibi. In the NCF, he said that both his girlfriend’s parents went to Lahore city to find them, but he told the Board that only her father and the Applicant’s elder brother and uncle went. In the NCF, he said his younger brother took him to clinic for treatment of the wound, but before the Board he said his younger brother brought a doctor to his friend’s home to treat him. The Applicant was inconsistent about the number of people who attacked him when he escaped from the village, whether his uncle and elder brother were present during the shooting incident.
10. The Board doubted the Applicant’s evidence about his conversion to Shia sect because he was unable to explain the difference between the two sects to any great depth. The Board also found it incredible that he returned in 2017 to live in the same village as his elder brother who threatened to kill him.
11. Because of the significant inconsistencies, lack of credibility of his case and absence of documentary evidence, the Board rejected the Applicant’s evidence. It did not accept the Applicant had fallen in love with a Shia woman and was converted to the Shia sect; that he had been harmed because of his conversion to the Shia sect; and that he had been threatened, shot or assaulted. There is no factual basis to support the Applicant’s claim for non-refoulement protection on any of the four applicable grounds.
12. Lastly, the Board found on the basis of credible Country of Origin Information (“COI”) that state protection and internal relocation are available options to prevent or avoid the risk.
Grounds for judicial review
13. The Applicant advanced the following four grounds of application in his supporting affirmation:
(1) The Decision was not reasonable and unfair. The Adjudicator failed to give him sufficient time and chance to arrange relevant evidence.
(2) The Director failed to give proper weight to the presence of state acquiescence. He was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles.
(3) The Director failed to take such (above) arguments into account.
(4) This was a clean case of unfair attitude shown by the Director. The corruption and incompetency of the administration in his country is still a very serious problem. The Director failed to attain the high standard of fairness required by the Wednesbury test.
Ground (1) – Unreasonable and unfair
14. This ground is framed in what appeared to be a very long and heavily loaded paragraph, quoting Article 28 of the Basic Law and Article 2 of the Hong Kong Bill of Rights Ordinance and mentioning right to life and the extra-judicial killing which he would face if returned to Pakistan. These are high sounding principles and international obligations which Hong Kong honours to anyone whose life is at risk, provided he meets the criteria in any of the four applicable grounds under the USM. The question is whether the Applicant meets those criteria. The Board was of the opinion that the Applicant did not. That is a finding of facts exclusively within the province of the Board. The Applicant disagrees with the finding and complains that the Decision was unfair and unreasonable. Thus, this ground of application boils down to two points; namely whether the Decision was unreasonable and unfair in the public law sense, and whether the Board had given the Applicant sufficient time and chance to arrange the evidence.
15. The essence of the Applicant’s ground is that the Decision is unreasonable and irrational. But he did not give particulars as to why the Decision is unreasonable and irrational. He was asked to elaborate on his ground, but he said he did not remember. The Board set out the legal principles relating to the four applicable grounds under the USM, the burden of proof, the Applicant’s evidence and gave full reasons for its findings. Basically, the reason is the Applicant failed to discharge the burden of proving his fears and risks, that his fears and risks meet the criteria under any of the four applicable grounds. The Board’s findings could not be criticized as unfair or unreasonable.
16. As for the Applicant’s complaint that the Board did not give him sufficient time and chance to arrange the evidence, it is just an unsupported bald assertion. If he considered he did not have sufficient time to arrange his evidence, he could have informed the Board or sought an adjournment at the hearing for him to do so. He never did.
Grounds (2) – State acquiescence; torture at the behest of state law enforcement agencies
17. For the Applicant’s benefit, the Court treated his reference to the Director as including the Board as well. The Applicant complained that the Director failed to give proper weight to the presence of state acquiescence and the fact that he was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles; and to take such argument into account. The only torture or ill-treatment he ever received was the assault and gunshot wound by his elder brother and uncle and their men. There was no evidence that state law enforcement agencies were involved in those incidents. This ground is obviously copied from other applications for judicial review which has no bearing to the facts of this case.
Grounds (3) – Weighting on COI
18. The Applicant complains about the weighting given to the COI. In his favour, the Court assumed that complaint included at least the failure to take into consideration the corruption and incompetency of the administration in his country in giving him protection for his safety. After referring to COI from credible sources, including the Country Reports on Human Right Practices for 2017, Pakistan issued by the Department of State of the United States, the Board found corruption within the government and police remained a problem. But as the Board did not accept that his brother or uncle will harm or kill him, there is no issue about police protection.
19. The Board also referred to the World Factbook published by the Central Intelligence Agency of the United States for the size and population of Pakistan for the purpose of considering internal relocation. The data are not controvertible. There is no question about weighting.
20. Furthermore, for good reasons the Board found that the Applicant had failed to prove his fear and risk of harm was genuine. On this finding, there is no factual basis to support his claims for non-refoulement protection on any of the four applicable grounds. His claims were dismissed on that basis. In other words, the Applicant is not at risk at all. He has no need for state protection or internal relocation. It is only in respect of these two issues that corruption and incompetency of the administration may have relevance. What the Board found about availability of state protection and internal relocation was unnecessary for the Decision. Therefore, there is no substance in this ground.
Ground (4) – Unfair attitude and breach of high standard of fairness
21. Again, for the Applicant’s benefit, the Court treated his reference to the Director as including the Board as well. The Applicant argues that this was a clean case of unfair attitude shown by the Director (and the Board) and their breach of the high standard of fairness required by the Wednesbury test. He did not give particulars of unfairness and breach of duty. Taking a global view of the Applicant’s case, the findings of the Board and the above grounds, there is no substance in this ground as well.
Conclusion
22. For the above reasons, none of the grounds advanced by the Applicant has substance. In overall terms, the Applicant is in fact attempting to challenge the Board’s findings of facts under the guise of judicial review. 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. 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[5].
23. On the basis of his evidence, the Board was not satisfied that the Applicant has proved his fears and risks are genuine and that those fears and risks fall within the criteria entitling him to non-refoulement protection under any of the four applicable grounds. The Board gave reasons for its Decision. These are findings of facts which are exclusively 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. 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 burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. The Decision was utterly without fault. The Applicant’s grounds for judicial review are not reasonably arguable. There is no realistic prospect of success. Accordingly, leave to apply for judicial review is refused.
Dated the 9th day of June 2021
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(Sammi Wu) |
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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 9 June 2021
Aamir Ali
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 9 June 2021
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11573/18/5/158/P2245
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1432/18 (Formerly RBCZ 10802/17) [T6 S135]
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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] [2018] HKCA 524 at para 14(1)
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