MEHMOOD MUFTI v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1960/2018

[2021] HKCFI 983

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1960 of 2018

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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  The Applicant seeks leave to apply for judicial review of the decision (the “Decision”) of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 7 September 2018. 

2.  The Applicant is a Pakistani national from Punjab.  He is married and has two children.  He departed from Pakistan on 10 October 2015 on the strength of his Pakistani passport and arrived in Guangzhou by air on the following day.  Then he went to Shenzhen.  From there he entered Hong Kong illegally by boat on 15 October 2015 when he was arrested.  He sought non-refoulement protection on 18 October 2015.  He claimed that his life will be in danger as a result of a land dispute with his neighbour, if he is returned to Pakistan.

3.  The Applicant was assessed on all four applicable grounds available under the USM, namely:

(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 (“Torture Risk”);

(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”) (“BOR 3 Risk”);

(3) risk of persecution by reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“Persecution Risk”); and

(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 (“BOR 2 Risk”)

4.  By a Notice of Decision dated 28 July 2017, the Director rejected his application for non-refoulement protection.  The Applicant appealed to the Board on 8 August 2017.  His appeal was dismissed by the Board on 7 September 2018.  On 18 September 2018, he applied for leave to apply for judicial review of the Decision of the Board. In his affirmation filed on the same day in support of his application, he repeated his case of fear and risk as set out in his non-refoulement claim form.  In essence, he disagreed with the Decision of the Board and asserted that his life would be in danger if returned to Pakistan.

The Applicant’s case

5.  The Applicant’s case as set out in his non-refoulement claim form is as follows.

6.  His father bought two kanals of farmland (about 1,000 square metres) from the village head in 2011. His father paid part of the purchase price with the balance to be paid when his family had the money.  As was traditional in their area, the title of the land would not be transferred until the final payment was made.

7.  The vendor died in 2015.  His son, F, who returned from Europe did not honour the sale and purchase agreement.  F refused to accept payment of the outstanding balance and told the Applicant’s father to leave the land.

8.  A few days later, while the Applicant was working on the land, F and his family members told him to leave.  He argued with them but eventually left to avoid a fight.  His father with the help of the village Imam tried to negotiate with F, but failed.

9.  Two weeks later, in mid-June 2015, the Applicant was assaulted by F and four of his relatives for about five minutes.  As F was leaving, he told the Applicant that if he saw him on the land again, he would kill the Applicant.  The Applicant’s father went to talk to F again, but was told to leave and stay away from the land.

10.  In July 2015, F and one of his friends attacked the Applicant while he was working on the land.  The Applicant hurt F on his shoulder and belly with a sickle in self-defence.  He ran back home.  His father told him to hide away in a relatives’ house about one and a half hours away by bus immediately.

11.  While the Applicant was in the hiding, F and his family came to his house looking for him.  They abducted his father who was later rescued by some villagers.  F’s relatives vowed that they would kill the Applicant.  Thereafter, the police and F’s family came looking for him every day for almost six weeks. 

12.  In mid-August 2015, the Applicant’s father told him that the police and F’s family had located him and were coming after him.  The Applicant immediately fled to Rawalpindi to stay with a friend.  Then he fled to Hong Kong.

The finding of the Board

13.  At the hearing before the Board, the Applicant repeated his case as set out in his non-refoulement claim form.  Except for one issue, the Board basically accepted his evidence as summarised above.  The Board also accepted the Applicant’s evidence that he had hurt F.  But it did not accept his allegation regarding the power and influence F’s family had over the Pakistan Muslim League Nawazsharif political party as he offered no coherent explanation of such influence of political involvement.  The Board did not accept his claims about F’s family’s ability to harm him wherever he may go in Pakistan.  The Board was not satisfied that the Applicant had established that there are substantial grounds which support the conclusion that he will face a real risk of ill-treatment, if he is returned to Pakistan.

14.  Principally for the above reasons, the Board did not accept that the Applicant has shown that the four risks are real or genuine.  Accordingly, the Board affirmed the Decision of the Director dated 28 July 2017 and dismissed the Applicant’s appeal.

Disposition

15.  The role of the court in judicial review is not to re-assess the non-refoulement claim 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 [2018] HKCA 524 at [14(1)].

16.  The Court had rigorously scrutinized the Board’s Decision, the papers, grounds of application and the Applicant’s submissions.  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 Board concluded that there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds.  The Court found that the Decision of the Board was utterly without fault.  There were no errors of law or irrationality in its Decision or procedural unfairness.  The Court concluded that there is no substance in the grounds of this application.  Accordingly, the application is dismissed.

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