MANZOOR YASIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMNT CLAIMS PETITION OFFICE

HCAL 254/2019

[2022] HKCFI 536

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 254 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 the Applicant being absent in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application 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 4 January 2019 (the “Decision”) and the decision of the Director of Immigration (the “Director”) in his notice of decision dated 30 October 2017 (the “Notice”). 

2.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also.  

3.  The Applicant is a national of Pakistan.  He entered Hong Kong illegally on 29 September 2015 for which he was arrested.  On 1 October 2015, he lodged a non-refoulement claim.  In due course, his claim was assessed on all four applicable grounds available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4] and BOR 2 Risk[5].  His claim was rejected by the Director’s decision in the Notice.  He appealed against the Notice.  His appeal was dismissed by the Board’s Decision.  He now seeks leave to apply for judicial review of that Decision. 

The Applicant’s case

4.  The following is a summary of the Applicant’s case mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with the assistance of the Duty Lawyer Service and other documents prepared by the Immigration Department as contained in the hearing bundle before the Board.  In gist, his case is that if returned to his home country, he would be harmed or killed by people associated with Pakistan Muslim League (Nawaz) (“PML(N)”), namely his uncle and cousins.

5.  The Applicant is now aged 31.  He had received 8 years’ formal education.  He was employed as a carpenter in the United Arab Emirates (“UAE”) between 2013 and 2015.

6.  His father supported Pakistan Tehreek-e-Insaf political party (PTI”) and was its vice-Nazim responsible for welfare activities.  His uncle was Nazim for PML(N) who wanted his father to join PML(N).  Over the years there were many threats and physical attacks between his father and his uncle.  His father was shot and killed in a shooting in around late 2014 while the Applicant was working in UAE.  The police made some enquiries.  He believes his uncle was involved but his uncle was not arrested because of his influence as PML(N) Nazim. 

7.  At his father’s funeral, his cousins told the other family members now that his father was dead, they would kill the Applicant as well.  They also made threats against the Applicant to his mother.

8.  On his return to Pakistan from UAE, he followed up with the police investigation into the first shootings.  The police told him that no case had been formally registered.  The Applicant then sought help from a PTI leader who told him to be patient and to join PTI.  The Applicant joined and attended meetings and campaigned for PTI.  Due to his political activities, his uncle drove his mother out of the family house.

9.  On 14 March 2015, while he was shopping with his friend, his cousin and another person on a motorcycle shot at him.  He escaped uninjured and made a report to the police.  The police did not take any action.  He believes that was because of his uncle’s influence.

10.  A few days later, that cousin confronted the Applicant and threatened him.

11.  On 7 July 2015, that cousin and an unknown person on motorcycle came to the Applicant’s house and shot him in the arm. The Applicant made a report to the police, but again the police took no action.  He believes that was because of the uncle’s influence.

12.  Fearful of further harm, the Applicant went to Rawalpindi and then to Gilgit, from where he took a bus to China.

The finding of the Board

13.  The Board found significant inconsistencies in the Applicant’s evidence given in the NCF and that before the Board; such as whether his father was shot while he was a boy or when he was a grown up working in UAE; whether he attended his father’s funeral; whether it was the Applicant or his mother following up the first shooting with the police; whether his mother moved out of the family house or was driven out by his uncle because of his political activities.  The Board also found his account of the two shootings at him inconsistent and confusing. 

14.  In the final analysis, the Board found the Applicant was not a credible witness.  It rejected the Applicant’s case and found that he fabricated the claim so as to create a basis upon which to apply for non-refoulement protection.  The Board did not consider the Applicant faces a real risk of proscribed harm from the uncle, his cousins and/or supporters of PML(N), if he is refouled to Pakistan.  In view of this conclusion, the Board did not consider it necessary to make findings in relation to internal relocation.  Accordingly, the Board found the Applicant was not qualified for non-refoulement protection under any of the applicable grounds under the USM and dismissed his appeal against the decisions of the Director in the Notice.

The applicable legal principles

15.  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[6].

Grounds for judicial review

16.  In his affirmation filed in support of his application, the Applicant advanced the following grounds of application:

(1)     lack of legal and language assistance (paragraphs 13, 14, 19 to 22, 24 and 27 of his affirmation);

(2)      the Board did not address the issues raised in the notice of appeal and the decision was made on a templet basis (paragraph 18 of his affirmation);

(3)     the Board’s failure to give reasons (paragraph 23; and

(4)     bias (paragraphs 25 and 26)

Ground (1):  lack of legal and language assistance

17.  The Applicant complained that in breach of the high standard of fairness he was not given legal and language assistance in the preparation of his appeal before the Board and at the hearing.  In Re Zafar Muazam[7], Re Zunariyah[8], Re Zahid Abbas[9], Re Tariq Farhan[10], and Re Lopchan Subash[11], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v.Sakthevel Prabakar[12] nor the judgment of FB v. Director of Immigration[13] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether the claimant is prejudiced for want of legal assistance.

18.  Likewise, in Karamjit Singh[14], the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required.  As a matter of law, a claimant does not have absolute right to free language assistance at all stages of the proceedings.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, he has to live with or cope with his language disability.  He cannot expect to have the luxury to have any documents translated into his first language for his benefit as and when he requires.  He has to find assistance himself from among his friends and his ethnic community, if necessary.

19.  The Applicant complained that he had no language assistance in completing the notice of appeal and in understanding the hearing bundle for the purpose of preparing his appeal.  Though the hearing bundle is in English, it is basically made up of his NCF, the record of the screening interview and the decision of the Director in the Notice, including the COI.  He knew what is contained in his NCF which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service.  He knew what is contained in the record of screening interview which he attended with the assistance of interpreter and legal representation.  The record had been read back to him in his own language and he signed to acknowledge that he understood and agreed with its contents and that no amendment was necessary.  Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips.  

20.  The Notice of the Director was issued to him on 30 October 2017.  It was not until 11 September 2018 that the oral hearing was held.  The Notice is in English and, unfortunately, no translation was provided.  He cannot expect these documents to be fully translated for him.   He had in between the issue of the Notice and the oral hearing ten and half to seek assistance from among his own circle, if necessary.  He should not do nothing but expect the host country would translate the documents to him as and when he requires as if the host country were head-hunting for people of his expertise.    

21.  The Applicant complained that though he was provided with the services of an interpreter at the hearing before the Board, the documents in the hearing bundle had not been read back to him in his own language and he did not understand its contents. He should have prepared himself for the hearing well before the hearing.  For reasons as explained above, there is no substance in this complaint.

22.  The Applicant complained that he was not given language assistance in understanding the Decision of the Board.  That argument is groundless.  Whether he understood the reasons for the Decision, the Decision was already made.  Language assistance could not reverse the Decision.  It is accepted that his understanding of the Decision would enable him to present his application for judicial review. 

23.  The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter in preparing his NCF and at the screening interview and in presenting his case to the Director.  He therefore had the benefit of legal representation in presenting his case to the Director.  All the benefits that legal representation could have afforded him were contained in his written submissions, non-refoulement claim form and answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board.  The Applicants suffered no prejudice due to lack of legal representation before the Board.

24.  Taking a global view of the circumstances, nothing amiss arose from the lack of language and legal assistance at any stage of the non-refoulement proceedings.  He suffered no prejudice for the lack of such assistance.  His complaint is over-exaggerated.

Ground (2): templet decision

25.  The Applicant complained that the Board did not address the issues raised in his notice of appeal and just came up with assessment on more or less templet basis.  He lodged a nine-page submission.  Much of it are quotes from the Hong Kong Bill of Rights Ordinance and legal arguments about the standard of fairness and lack of legal and language assistance.  He raised some legal issues.  However, the Board found as a fact that the Applicant was not credible and rejected his evidence.  The Applicant has failed discharge the burden of proving the factual basis for his non-refoulement claim.  That is fatal.  All the legal arguments advanced by the Applicant in the notice of appeal are irrelevant.

26.  The Board had taken note of his notice of appeal in paragraph 12 of its Decision and rightly said that the right to legal representation is not absolute.  In response to the criticisms about the Director’s decision in the Notice, the Board rightly said that it was not conducting a judicial review but was making its own decision on the basis of the relevant evidence and submission before it and its Decision will supersede the Director’s in the Notice.  The appeal was a fresh hearing.

27.  The Applicant complained that the Director did not properly address the issues in his case but just made a standardised assessment as if using a template.  The Court assumed that the complaint was also directed at the Board’s Decision.  The Notice may have a similar format as notices issued in respect of other claimants.  The decisions of different adjudicators vary as a matter of personal style.  There may be some standardisation in decisions by the same adjudicator.  Such standardisation may be useful to ensure consistency in treatment and that nothing which ought to have been considered has been left out.  No serious complaint could be made of such standardisation. 

Ground (3): Failure to give reasons

28.  The Applicant complained that the Board failed to give reasons to enable him to understand (a) what evidence it accepted, (b) what evidence it rejected, (c) whether there was any evidence as to which it could not make up its mind whether or not it would accept, and (d) what, if any, evidence is regarded as irrelevant. 

29.  The Board thoroughly analysed the Applicant’s evidence in paragraphs 27 to 45 (pages 10 to 14) of its Decision.  The Board found him incredible and gave detailed reasons in those five pages.  Except for the evidence relating to his personal background, the Board rejected the entirety of his evidence.  The answer to his complaint is obvious on the face of the Decision.

Ground (4): Bias

30.  The Applicant complained that the Director adopted a formula and biased approach in assessing his claim.  He referred to a piece of COI about the ineffectiveness of the Pakistani police and efficiency of the judicial procedures.  The complaint, which is directed at the Director, is irrelevant. The Board’s Decision has superseded the Director’s.  The Board discussed internal relocation, which was what the COI mentioned by the Applicant is about, with the Applicant for the sake of completeness. As the Board noted, the Applicant having failed to discharge the burden of proving his entitlement to protection, it was unnecessary for it to make finding in relation to internal relocation.  His complaint of bias based on the COI is misplaced.

Conclusion

31.  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; correctly identified the issues and observed a very high standard of fairness.  On his evidence, the Board found that the Applicant incredible and rejected his evidence.  It was on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.  These are findings of fact 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.  The Board made no error of law and committed no procedural unfairness in reaching the Decision.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicant’s grounds are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

32.  For the above reasons, leave to apply for judicial review was 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

[1] [2018] HKCA 549

[2] 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

[3] 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”)

[4] 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

[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[6] [2018] HKCA 524 at para 14(1)

[7] cacv 2/2018, (unreported) 23 March 2018

[8] [2018] HKCA 14

[9] [2018] HKCA 15

[10] [2018] HKCA 17

[11] [2018] HKCA 37

[12] (2004) 7 HKCFAR 187

[13] HCAL 51 of 2007

[14] CACV 78/2018