SALIH NASIR 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:

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 14 May 2021 for leave to apply for judicial review (the “leave application”) of (i) the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 October 2019 refusing his application for non‑refoulement protection (the “Notice”) and (ii) the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 3 May  2021 (the “Decision”) dismissing his appeal against the decision in that 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  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. In the circumstances, the leave application as regards the Notice was refused forthwith and the Court solely considered his leave application as regards the Decision. 

The Applicant’s claim

3.  The Applicant is a Pakistani national, now aged 27.  His personal background, the factual background leading to the present application, 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.  The hyperlink to the Board’s Decision is included below[2] for reference.  In gist, he claims he will be harmed or killed, if returned to Pakistan, by his girlfriend’s family who did not want the couple to marry because he was from a lower caste. 

4.  The Applicant’s case is that he fell in love with his girlfriend whom he met in the university in 2017.  He belongs to the Yusafzai caste of a middle family.  His girlfriend came from a rich and influential family with connection to whichever political party in power.  He sent his parents to her girlfriend’s home to propose a marriage in February 2019.  Her girlfriend’s parents rejected the proposal because the Applicant is from a lower caste and were deemed inferior.  Later that month, his girlfriend’s parents sent four people to the Applicant’s home and threatened to kill him.  The Applicant took heed of the threat and stayed away from his girlfriend, but his girlfriend still tried to contact him.  When he later learned from a domestic helper in his girlfriend’s family that her parents had a plan to kill him, he fled to Hong Kong.

The Board’s finding

5.  The Applicant testified before the Board.  The Board accepted that he presented himself at face value as a reasonably credible and consistent witness.  It accepted his references to the existence of ongoing negotiations being conducted through the village Jirga system suggests that the claimed problem is a real one in respect of which real solutions are actively being explored.  The Applicant also volunteered that his girlfriend’s father recently died, a development potentially diminishing the risk he might face. 

6.  However, the Board also found glaring problems with his account about many of the events which comprised his narrative and purportedly form the reason for his decision to apply for a visa in order to leave Pakistan could not possibly have occurred when he said they did, because the visa in question had already been granted at least a month before he claimed he received the money from his father and engaged an agent to arrange that journey.  The Board considered the flaw so fundamental as to be potentially fatal to the Applicant’s claim.  Yet, the Applicant did not even attempt to explain when confronted with the inconsistency.  Thus the Board came to the conclusion that he had not provided a reliable account of his reasons for departing Pakistan.  It was not satisfied that the events described in the Applicant’s account actually occurred.  It does not accept as a result of his romantic involvement with a fellow student from a higher caste and/or class, and an abortive marriage proposal made by his parents to hers that the Applicant and his family came under threat from his girlfriend’s family.  The Board was not satisfied that the Applicant would face any real or substantial risk of being subject to serious or significant harm for the reasons claimed if he returned to Pakistan in the reasonably foreseeable future.  It was not satisfied that the threat of harm facing the Applicant was not localised to his girlfriend’s area.  Hence, it found he could also avoid the risk of harm by internal relocation. 

7.  Applying the law applicable to non-refoulement protection under the Unified Screening Mechanism (the “USM”), the Board found the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal.

The legal principles applicable to judicial review

8.  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[3].

Grounds for judicial review

9.  At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant presented a four page document, titled “Grounds on which Relief is sought”.  He said he dictated it and his friend typed it out for him.  Having studied law for two years in a university in Pakistan, he should be capable of preparing such a document.  However, the document is very familiar to the Court as it has seen similar or even identical grounds in other applications.  They contain general propositions or principles. They appear to be template grounds with no particulars and have no bearing on the application at issue.  Some of the grounds are addressed at the Director and only one is addressed at both the Director and the Board.  As the Director’s decision in the Notice had been superseded by the Board’s Decision and is no longer susceptible to judicial review, the Court assumes in his favour that all the grounds are directed at the Board.  He raised four grounds.

(1)   The Applicant believes the Director and the Board reached the Decision wrongly, the Decision is unreasonable and unfair; he believes the Board failed to give him sufficient time and chance to arrange relevant evidence:

10.  He gave no particulars of the basis of his belief and as to what was wrong, unreasonable and unfair.  When asked, he said “the officer said it is not enough” and that “everything is written down.”

11.  He was also unable to give particulars to support his claim that the Board did not allow him time to arrange his evidence.  The Notice containing the decision of the Director was issued on 8 October 2019.  The hearing before the Board was held on 5 March 2021.  In between, he had more than one and half years to prepare for his appeal.  It lies ill in his mouth to complain that he had no time to arrange for his evidence.

(2)   The Director failed to appreciate the importance or weightage to the presence of state acquiescence; and the Applicant was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles:

12.  State acquiescence was not featured in the Applicant’s claim.  He was threatened by people sent by his girlfriend’s parents.  He was not tortured, let alone at the behest of state law enforcement agencies as well as those in the high ups of political circles.  When asked for particulars, the Applicant replied that his girlfriend’s parents are powerful and if he returned to Pakistan, he would have no protection, presumably from the state.  That issue had been disposed of by the Board’s rejection of his fear and in the alternative by its finding that internal relocation is a viable option to avoid the risk of harm from his girlfriend’s parents.

(3)   The Director failed to take such argument into account or failed to give enough weight to such argument before reaching the Decision:

13.  When asked to identify or provide particulars of the argument which he complained the Board had not taken into account or given weight to, the Applicant was unable to provide any.  He said the Board did not give him enough time and he had documents to produce to the Board.  When asked if he had told the Board that he had documents to produce, he said he had not and he just received a letter requiring him to attend the hearing.   His answers did not address or support the ground of review.  They were totally irrelevant.

(4)   The unfair attitude shown by the Director is enough to render the Decision void:

14.  When asked for particulars of the Director’s or the Board’s unfair attitude, the Applicant was unable to provide any.  Eventually, he said by rejecting his claim, the Board acted unfairly.

15.  None of these grounds are arguable grounds for review.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness and irrationality in the Decision sought to be reviewed. 

Overall scrutiny

16.  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.  

17.  The Board analysed the evidence carefully and tested it against common sense, inherent probability and the country of origin information.  It found part of the Applicant’s case consistent and reasonably credible.  It seemingly accepted that the Applicant had a real problem.  However, it found glaring problems in his account of many of the events which comprised his narrative which purportedly form the reason for his decision to apply for a visa to leave Pakistan which could not possibly have occurred when he said they occurred. When confronted, the Applicant did not even attempt to explain the glaring problems.  The Board considered the flaw so fundamental as to be potentially fatal to his claim.  It did not accept the Applicant had provided a reliable account of his reasons for departing Pakistan.  This is essentially a finding of a witness’ credibility which is solely a matter for the Board.  The Board was not satisfied that the Applicant faced any real or substantial risk of being subject to serious or significant harm for the reasons claimed if he returns to Pakistan in the reasonable foreseeable future.  It also found internal relocation feasible.  In conclusion, the Board found the Applicant had failed to establish the factual in support of any of his claims 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 findings were 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

18.  For the above reasons, the Applicant’s leave application 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