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

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.   On the Court's motion, the date of the decision in respect of which relief is sought is amended to "23 February 2021”; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.   This is the Applicant’s application by Form 86 filed on 3 March 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 21 February 2021 dismissing his appeal against the decision of the Director of Immigration in his Notice of Further Decision refusing his claim for non‑refoulement protection. Upon verification with the relevant documents, the Court noted that the decision in respect of which relief is sought is actually dated “23 February 2021” and not “21 February 2021” as stated by the Applicant in his Form 86.  Accordingly, on its own motion, the date of the decision as stated in the Form 86 is amended.

The Applicant’s claim

2.   The Applicant is a Pakistani national now aged 38.  He entered Hong Kong illegally on or about 20 February 2016.  He surrendered to the authorities on 24 February 2016 and sought international protection.  He submitted his non-refoulement claim form on 25 September 2018.  His claims were assessed by the Director under 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] grounds and rejected.  His appeal against the Director’s decision was also dismissed by the Board’s Decision.  He now seeks leave to apply for judicial review of that Decision.

The Applicant’s claim

3.  The Applicant’s personal background, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[5] for reference.  In gist, he claims he will be harmed or killed by his uncle and cousins for attempting to break up the family land by insisting to sell his share of the farmland.

4.  The Applicant’s case is that his father and his uncle had inherited 600 kanals of farmland from their grandfather.  One year after his father’s death in around 2012, the Applicant wanted to sell his share of the land.  As the land has not been divided, it is held in common and consent from the family is required to divide the land.  He asked his uncle to transfer his share of the land to him, but his uncle refused.  He made complaints to the authorities and the police, but to no avail.

5.  In early 2014, the Applicant was approached by his cousin and four unknown men in the street.  His cousin asked why he had gone to the police. After some exchanges, his cousin and his men assaulted him.  The attack lasted for 5 to 7 minutes and he fell unconscious.  He recovered in two weeks.  Since then, he received constant threats from his cousin.

6.  Out of fear, the Applicant moved to live with his friend, Waheed and later with Waheed’s friend in January 2015.  Then he learned that his younger brother and Waheed were detained by the police without any charge to please his cousin.  After his younger brother was released, his elder brother warned him that if anything bad happened again to the family, his elder brother would kill him.  In November 2015, the Applicant flew to Guangzhou and later sneaked into Hong Kong.

The finding of the Board

7.  The Board considered the Applicant’s case badly wanting in details and found it necessary to hold an oral hearing to ask him questions to enable the Board to establish various key matters of concern to the Board.  The Applicant attended the hearing.  Despite repeated explanation that there was insufficient information on the papers and that there were matters requiring clarification, he refused to cooperate and to answer the Board’s queries.   Even after the Board had unequivocally told him that without his cooperation to deal with matters of concern to the Board, he would be most unlikely to succeed with his appeal, he continued to refuse to answer the Board’s questions.  The hearing was then brought to a close.  With the inconsistencies and ambiguities in his evidence being unresolved, and the many questions of concern to the Board being unanswered, the Board reached the conclusion that there is no factual basis to conclude the Applicant faces any risk for any reasons upon his return to Pakistan.

8.  The Board went further.  It put aside the discrepancies and difficulties in the Applicant’s case and assessed his claim on the basis of the case as he asserted.  It referred to the principle that where the behaviour which the Applicant was forced to modify by his uncle and cousin is not the expression of fundamental rights or of a characteristic protected by international law, an individual can reasonably be expected to alter his behavior to avoid persecution if this would be effective: see Canaj v Immigration Appeal Tribunal and Vallaj v Special Adjudicator[6]. As the right to own private property is not universally protected by international human rights law and the disposal of such property per se is not an instance of persecution, torture or other serious harm, the Board found the Applicant could avoid all forms of serious harm by leaving the land as it is, within the joint family system and it is reasonable to expect him to so modify his conduct.  If so, there would be no reason whatever for his family members to maintain any animus against him.

The legal principles applicable to judicial review

9.  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[7].

Grounds for judicial review

10.  The Applicant had not advanced any ground of review in the Form 86.  In his supporting affirmation, he reiterated his fear that he will be killed by his uncle and cousin, if refouled to Pakistan.  In effect, he is challenging the finding of the Board that his life would not be at risk returning to his home country, which is impermissible in any application for judicial review, save for errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on these three vitiating elements.

Overall scrutiny

11.  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.  

12.  The Board found numerous significant inconsistencies and ambiguities in the Applicant’s case.  It also considered that numerous aspects of his case require clarification.  It scheduled an oral hearing to enable those matters to be resolved.  But it was stuck with the Applicant’s uncooperative attitude. It is basically the Applicant’s burden to prove his entitlement to protection, though the Board was also under a duty of joint endeavor to assist the Applicant to establish as far as possible a solid basis on which to assess the credibility of his asserted facts.  The Applicant and the Board have to cooperate with each other in that common goal.  Neither party may sit back and leave to the other party to prove the Applicant’s claim.  While seeking protection from the international community, the Applicant has reciprocal obligations to assist the decision-maker in ascertaining and evaluating the facts in support of his claim.  Some of those obligations are set out in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (“UNHCR Handbook”).  These obligations include:

(i)   to tell the truth and assisting the decision-maker to the full in establishing the facts of his case;

(ii)   to give a satisfactory explanation for any lack of evidence; and

(iii)   to answer any questions put to him.

13.  Despite having been repeatedly explained that there was insufficient information on the papers to enable the Board to make a decision and that there were matters requiring clarification, the Applicant refused to cooperate and answer the Board’s questions.   Even after the Board had unequivocally warned him that without his cooperation to deal with matters of concern to the Board his appeal would most likely fail, he still continued to refuse to answer the Board’s questions.  The Board had clearly done all that it could in the discharge of its duty of joint endeavour.  It had even warned him of the consequence of his failure to answer questions.  On the very limited evidence presented by the Applicant, the Board could only come to the conclusion that he had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM.  The Board had acted with utmost fairness.  Under the circumstances, the decision reached by the Board was the necessary consequence of the Applicant’s uncooperative attitude and his breach of his own obligation as a claimant seeking protection from the international community.

14.  That is the primary basis of the Board’s Decision.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  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.

15.  The Board went on and assessed his claim assuming that the limited evidence he adduced were true.  But even on that basis, it found the Applicant could avoid all forms of serious harm by modifying his conduct by leaving the family land as it is, within the joint family system and that it is reasonable to expect him to do so.  This is the secondary basis of the Board’s decision.  It is also a mixed question of fact and of the law, which is not challengeable for the same reason as the primary basis of its Decision.

Conclusion

16.  For the above reasons, the Applicants’ leave application has no prospect of success and is 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

Form CALL-1