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HCAL 967/2021
[2025] HKCFI 279
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 967 of 2021
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BETWEEN
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Tahseen Yaseen |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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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 be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 9 July 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 7 July 2021 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 3 February 2021 (the “Notice”), refusing his non-refoulement application.
2. He had requested an oral hearing. A hearing was scheduled and notice of hearing was sent to him by post to his address as stated in his Form 86, which was also confirmed by the Immigration Department on 28 November 2024 as his up-to-date address. He never informed the court of his change of address since filing his Form 86. The notice has not been returned through the course of mail. There is nothing to suggest that the Applicant had not received the notice or had moved. However, he did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.
Background
3. The Applicant is a Pakistani national. He sneaked into Hong Kong in June 2020. He was arrested by the police on 1 August 2020. Then, he made a non-refoulement claim by way of written representations dated 25 August and 25 September 2020. In due course, his non-refoulement claim was assessed on 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]. His application was rejected by the Director’s Notice. His appeal was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
4. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims that if returned to Pakistan, he will be harmed or killed by his neighbour landowner (the “neighbour”) because of a land dispute and the animosity created for his having injured his neighbour’s son.
5. The Applicant, now aged 29, was born in Mangla Hamlet, Azad Kashmir, Pakistan. He is single. His widowed father and five siblings are living in Pakistan. He received formal education for eight years and had four years’ experience working as a farmer and in a teashop.
6. The Applicant claimed that he had a plot of farmland passed down to him in 2014 and registered in his name (the “Land”). His neighbour was a member of the Pakistan Tehreek-e-Insaf political party (“PTI”) and was well acquainted with senior members and leaders of the PTI. In 2017, to extend his farming business, his neighbour demanded the Applicant’s father to sell the Land to him under the threat of death. The Applicant’s father refused.
7. One day in March 2018, the neighbour’s son and his friends went to the Land and asked the Applicant to transfer the Land to him and his father. The Applicant was enraged and picked up a stone on the ground to hit the neighbour’s son. The neighbour’s son and his friends fought back with bare hands. The Applicant passed out. When he regained consciousness, he found himself in the City Hospital. During his two days’ hospitalisation, he learnt from his parents that the neighbour had been to his home and had told his sister that he would not spare the Applicant’s life for assaulting his son. On the same day of the attack, the Applicant’s parents registered a complaint with the police, but the police took no follow-up action. For safety concerns, the Applicant’s parents sent the Applicant to Islamabad to stay in the home of his father’s friend upon his discharge from hospital. He stayed there for about one month.
8. One day in April 2018, when he was working in a teashop in Islamabad, a group of unknown men armed with knives and wooden sticks entered. They said they were sent by the neighbour to kill him. The Applicant managed to escape when his colleagues intervened. He went to Karachi the next day. Whilst in Karachi, he learnt from his parents that the neighbour’s associates had been to his home to ask for his whereabouts almost every day and threatened to kill him if they ran into him. However, they did not harm his family and his father continued to farm on the Land as before.
9. The Applicant claims that state protection is not available in Pakistan. He does not believe internal relocation viable, as the neighbour could locate him throughout the country through his powerful network.
The finding of the Board
10. The Applicant testified before the Board. The Board found his case was made up of implausibilities and conjectures. Parts of his evidence were inconsistent or implausible, or were nothing more than suppositions or conjectures. Hereunder are some examples.
11. In respect of the first attack on the Land, the Applicant previously said that he attacked the neighbour’s son first. However, he told the Board, initially that it was the neighbour’s son who attacked him first. When confronted with his previous statement, he revised his account and said he struck the neighbour’s son first.
12. He told the Board that he had the stone in his hand before hitting the neighbour’s son with it. But, previously he said he threw the stone at the neighbour’s son which hit his head. When confronted with the inconsistencies, he said he could not remember.
13. At the hearing, he first said that his sister had heard the neighbour utter threats against him many times. However, he changed his evidence later and said she only heard it three or four times following the first attack, and there were no threats thereafter.
14. As for the second attack in the teashop, he previously said that the unknown men were armed with knives and wooden sticks. But he told the Board that they only carried sticks, and he saw no knives.
15. On evidence, the Board accepted that the Applicant and his father had a land dispute with their neighbour, and that the Applicant was involved in an altercation with the neighbour’s son and others arising from that dispute. On his evidence, the Applicant had no direct contact with the neighbour subsequent to the altercation and had never personally heard the neighbour threaten him. Hence, the Board found there was no credible evidence suggesting that the neighbour had attempted to pursue him. In respect of the second attack, the Board found it wholly implausible that weeks after the neighbour’s alleged threats had ended, a group of men should travel two hours to Islamabad on the neighbour’s behalf, find the particular teashop where the Applicant was working and threatened to kill him. Taken in conjunction with the inconsistency in the Applicant’s account of the weapons they were allegedly carrying, the Board found the Applicant had failed to establish by credible evidence that he was pursued or threatened by the unknown men in Islamabad as he alleged or that the second attack had occurred at all. Hence, the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM. It also made the following further findings in respect of each of the four applicable grounds.
16. In respect of Persecution Risk ground, the Board found no evidence to suggest the neighbour has or had any significant involvement in the PTI’s affairs or that political differences played any part in the dispute between him and the Applicant and his father. Their dispute is a land dispute which did not arise because of a reason under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol. It also found on the basis of authoritative and credible country of origin information (“COI”) that despite serious shortcomings in the police and widespread corruption within the police and the government, there are on-going reforms to improve the situation. On balance, the Board found reasonable state protection would be available to the Applicant, if he returned to Pakistan.
17. In respect of BOR 2 Risk ground, the Board found the Applicant had presented no credible evidence that his life was at real risk before he left Pakistan and there was also no evidence to suggest his life would be at risk, if he were refouled to Pakistan.
18. In respect of BOR 3 Risk ground, the Board found the injuries he suffered was not of a character or seriousness as to amount to torture or cruel, inhuman, degrading treatment or punishment (“CIDTP”) or was there any credible evidence that he had been subjected to intense mental suffering such as would amount to torture of CIDTP. It therefore did not accept there were substantial grounds for believing that the Applicant would face a real risk of being subjected to torture or CIDTP, if refouled to Pakistan.
19. In respect of Torture Risk ground, the Board found the injuries he suffered did not amount to severe pain or suffering nor were they inflicted by or at the instigation of or with the consent or acquiescence of any public official nor has the Applicant put forward any credible evidence that the police or public officials failed to act as they should have done in respect of that assault.
20. Lastly, on the basis of the COI, the Board was also satisfied that internal relocation is a feasible option to avoid the risk of harm from the neighbour.
21. In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that the Applicant faced any real risk of ill-treatment if refouled to Pakistan. Hence, it dismissed his appeal against the Director’s Notice.
Legal principles applicable to judicial review
22. 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 for judicial review
23. The Applicant did not advance any grounds for judicial review in Form 86 or his supporting affirmation. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Overall scrutiny
24. 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. The Board analysed the evidence carefully, tested it against common sense and inherent probability and gave reasons for its finding. It found parts of the Applicant’s evidence unreliable, inconsistent, implausible and were made up of conjectures. It gave the Applicant generous allowance for the benefit of doubt. It accepted his evidence about the first attack on the Land and the injuries he claimed he had suffered, but rejected his evidence about the second attack. It was on the basis of the evidence which the Board accepted that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. 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.
Conclusion
25. For the above reasons, the leave application is refused.
Dated the 16th day of January 2025
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(Seline Sze)
for Registrar, High Court
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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 the Applicant’s 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 16/01/2025
Tahseen Yaseen
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 16/01/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17622/21/2/38/P3416
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 696/20 (formerly RBCZ 10596/20)
Department of Justice,
Senior Assistant Law Officer
(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 23 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 [14(1)]
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