MAHMOOD ADNAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2618/2018

[2022] HKCFI 2183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2618 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 (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 28 September 2018 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 25 September 2017 (the “Notice”).  Though the Director is named as a proposed respondent, no relief is sought in respect of the Notice or any decision of the Director.  In his supporting affirmation he annexed a copy of the Decision of the Board, which he mistakenly alleged is the decision of the Director dated 28 September 2018.  Thus the subject matter of his application is the Decision of the Board.

2.  The Applicant is a national of Pakistan, now aged 35.   He entered Hong Kong on 30 December 2014 illegally and surrendered to the authorities on 12 January 2015. On 13 May 2015, he raised a non-refoulement claim.

3.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  By a Notice of Decision dated 25 September 2017, the Director rejected his claims under all four applicable grounds.

4.  He appealed to the Board against the decision of the Director in the Notice.  By its Decision dated 28 September 2018, the Board dismissed his appeal.  On 20 November 2018, he applied for leave to apply for judicial review of the Decision of the Board. He did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.    In gist, he claimed that he will be killed by his father’s stepbrother Anwar and Anwar’s sons upon his return because of a land dispute.

6.  The Applicant was born and raised in a village in Kashmir, Pakistan.  He received eight years of education and never had any job in Pakistan after graduation.  He was financially supported by his family.  His father bought and inherited several pieces of farmland in his home village.

7.  In around 1998, his father was killed by Anwar and his sons because his father refused to give up certain plots of farmland (the “Farmland”).  Anwar and his sons were charged with murder but they were acquitted two months later.  The Applicant suspected that Anwar bribed the police and the witnesses, and used their political connections in the Pakistan Peoples Party (“PPP”) to interfere the proceedings.

8.  After their acquittal, Anwar and his sons began occupying the Farmland and obtained their legal ownership through their political connections.  The Applicant appealed to the court, but his appeal was dismissed.

9.  On 13 August 1999, the Applicant was beaten up by Anwar’s four sons in his home village for about two minutes. He was taken to a hospital where he stayed for two days.  His mother died next day from heart attack triggered by news of the assault on him.  The Applicant filed a First Information Report (“FIR”) with the police but the police did not take any action.

10.  On 16 August 1999, the Applicant saw Anwar’s four sons, who were carrying weapons, breaking into his house.  He believed they came to his house to kill him.  He escaped.  For the next few years, he moved to different places in Pakistan.  In around 2009 he arranged an agent to arrange his trip to Hong Kong via Guangzhou.  He arrived in Guangzhou around late December 2009 but he was told by his friend (Danish) that Anwar wanted to settle matters peacefully.  He therefore went back to his home village in early January 2010.

11.  On 7 January 2010, while staying in his home, Anwar’s sons forcefully entered his home and he fled immediately.  He moved to different places in Pakistan and stayed with his friends until December 2014 when he paid an agent to arrange for his trip to Hong Kong again.

The finding of the Board

12.  The Board found inconsistencies in his evidence but gave him the benefits of the doubt and accepted his case as he asserted.  The Board accepted that Anwar killed his father and took the Farmland and that the Applicant moved from place to place in Pakistan to avoid Anwar.  Based on what the Board accepted as having happened to the Applicant in the past, the Board assessed his risk of future harm.

13.  The Board noted that Anwar and his sons were unable to locate the Applicant in other parts of Pakistan for over 15 years.  It found that either they were not as politically connected as the Applicant claimed they were or they have not been actively looking for him.  The Board also noted that Anwar and his sons did not have a strong motive to kill him, as they had taken legal ownership of the Farmland and the Applicant has not taken any steps to reclaim them.

14.  The Board found that the Applicant should be able to safely reside in Karachi or Islamabad upon his return, as he had done so in the past.  The Board concluded that there was insufficient evidence to show that the Applicant would face any of the proscribed risks of harm upon his return and dismissed his appeal. 

15.  Applying the law applicable to non-refoulement protection under the USM to the above finding of fact, the Board found the Applicant had failed to prove the factual basis to support his claim for protection under any of the four applicable grounds under the USM.  It therefore upheld the decision of the Director in the Notice and dismissed his appeal.

The legal principles applicable to judicial review

16.  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[5].  Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

17.  The Applicant did not put forward any grounds in his Form 86.  In his supporting affirmation, he reiterated that the Decision was unreasonable and unfair and his life is in danger in Pakistan.  But he gave no particulars of the unreasonableness and unfairness alleged.  He had been invited by the Court via its letter dated 10 February 2021 to advise the Court of his first language, contact number and to file submissions.  He did not respond.  The letter was sent by post to his address as stated in his Form 86 filed on 20 November 2018.  It has not been returned through the post.  He never informed the court of any change of address.  There is nothing to suggest that he had not received the letter or had moved.   

Discussion

18.  In the absence of specific grounds of application, 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.  Apart from a general and un-particularized complaint about unreasonableness and unfairness, the essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to his home country, which, in effect, is a challenge of the Board’s finding of fact that he would not face any real harm or risk if returned to Pakistan.  

19.  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; and observed a very high standard of fairness.  Despite some inconsistencies and uncertainties in his evidence, the Board accepted his evidence and assessed his claim on the basis of the case he asserted.  In essence, the Board found that the risk of harm he would face upon his return to Pakistan is low.  It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM.  Basically, the Applicant failed to discharge his burden of proving his fears and risks. This is a finding of fact solely 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 Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

20.  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] 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 33 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 para 14(1)