ULLAH SAFI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1438/2020

[2022] HKCFI 620

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1438 of 2020

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 are two applications before the Court: (1) the Applicant’s application by Form 86 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 2 July 2020 (the “Decision”); and (2) his application by way of affirmation filed on 14 December 2021 to withdraw that application (the “withdrawal application”).  

2.  The Applicant is a national of Pakistan.  He claimed to have sneaked into Hong Kong on 16 December 2015.  He was arrested by the police on 18 December 2015.  He then applied for non-refoulement protection claiming that, if refouled, he would be at risk of being harmed or killed by ten to fifteen people from his village (“his enemies”) because they wanted to occupy his land.

3.  In due course, him non-refoulement claims were assessed on all four applicable grounds available 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 27 September 2018, the Director of Immigration rejected his claims.  His appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision.  On 9 July 2020, he took out the leave application seeking leave to apply for judicial review of that Decision.  He did not state his grounds of application in his Form 86 nor did he file any affirmation setting out the grounds of his application. 

4.  Then, on 14 December 2021, the Applicant apply by way of affirmation to withdraw his leave application.  The reasons stated in his affirmation are:

“I would like to close my appeal because I go back to my country my case number 1438/2020 dated 20-7-2020. But now I want close my case.”

That is only a statement of his intention to close his case but not the reasons or grounds for doing so.  To ensure that his decision to withdraw was made voluntarily and not as a result of threat, duress or other inappropriate reasons and to ensure that he will be safe if returned to his home country, the Court wrote to him on 4 January 2022 informing him that his application is adjourned to 20 January 2022 for hearing.  The Court also gave him directions to lodge a statement setting out:

(a)  the grounds for the withdrawal application, stating in particular:

(i)  whether his feared harm has been resolved; and

(ii)  whether he still anticipates any real chance that he will be harmed or otherwise ill-treated by his enemies, if refouled.

He was also informed that the withdrawal application as well as his leave application, if the withdrawal application is refused, will be determined on paper, if he does not attend the hearing regardless whether the above directions have been complied with.  A formal notice of hearing was also sent to him by post on 5 January 2022.  The letter and notice have not been returned through the post.

5.  The Applicant did not respond and did not attend the hearing.  The letter containing the directions and the notice of hearing were sent to him within 22 days of his filing of the withdrawal application and to the address stated therein.  There is nothing to suggest the Applicant has changed his address or has not received the correspondence.  Accordingly, his applications were determined on paper in his absence.

The applicable legal principles          

6.  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].

The Applicant’s case

7.  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.

8.  The Applicant is a national of Pakistan, now aged 34.  He and his family are supporters of Pakistan Peoples Party (“PPP”). He was a sub-district president.  PPP won the election in 2013.

9.  The Applicant’s family own a piece of land (the “Land”) since 16 or 17 years ago.  One day in 2013 about 10 to 15 of his enemies approached his family and claimed that the land belonged to them.  He knew those people.  They included a retired and serving police officers, a supporter of Pakistan Muslim League (Nawaz) (“PML(N)”), workers, farmers and landlords. 

10.  Between 2013 and 2014, his enemies lodged complaints to the police accusing that he had taken their land and was involved in a fighting.  He was not charged by the police, though his father was detained and then released on bail.  He also made reports to the police that his enemies were disturbing him and his family.  His family obtained two court declarations in 2012 and 2014 that the Land belonged to him and his family. His enemies disagreed with the court orders. 

11.  In April or May 2015, he was told by his friend Umar Abbas that PML(N) people threatened to kill him if he continued to support PPP in the election in December 2015.  In July or August 2015, while he was with his friends in a restaurant in his village, he saw 8 to 10 of his enemies walking towards him.  He ran away and stayed at his sister’s house some 10 kilometres away for 10 to 15 days. 

12.  Then, his friend Shakeel advised him that he would not be safe in Pakistan and suggested that he should come to Hong Kong to seek asylum.  Ion 29 November 2015, he left Pakistan for China by air.  From China, he sneaked into Hong Kong.

13.  PPP won the election in December 2015.  Then his father told him that when the family were going to congratulate the winning candidate, they were attacked by his enemies with sticks and knives for about 10 minutes.  His brother suffered a knife wound.  His father filed a report with the police and told him not to return as his enemies were still looking for him. 

14.  He refused the Board’s suggestion that he could relocate to Lahore or Islamabad because he thought he it would not be safe for he would be located by his enemies.

The finding of the Board

15.  The Applicant gave evidence before the Board.  However, the Board considered his evidence unreliable and questionable.  It found his evidence that he had been threatened by his enemies incredible.  The Board was not persuaded even to the low standard required that the Applicant had been threatened by his enemies in his home village.  The Board was unable to find any real chance that he will be harmed or otherwise ill-treated, if refouled.

16.  The Board found the Applicant had failed to prove any of the elements of “torture” under section 37U of the Immigration Ordinance to support a claim for protection under Torture Risk ground.  He had also failed to establish that he suffered ill-treatment that attained a minimum level of severity and that he faced a genuine and substantial risk of being subjected to torture or cruel, inhuman, degrading treatment or punishment.  Accordingly, his claim under BOR 3 Risk ground also failed.

17.  The Board found the Applicant had failed to show he had a well-founded fear of being persecuted for a reason under the 1951 Convention relating to the Status of Refugees. His claim under Persecution Risk ground failed.

18.  It also found that the facts of the Applicant’s case did not give rise to any risk of violation to right to life under Article 2(2) to Article 2(6).

Discussion

19.  Despite the Court’s directions, the Applicant declined to provide his grounds for withdrawal or to confirm that his alleged fear and risks of harm had been resolved or that he does not anticipate any real chance that he will be harmed or otherwise ill-treated by his enemies, if returned to Pakistan.  The Court is skeptical of the reason for his withdrawal of the leave application.  It is not unusual that some applicants would return and appeal the court’s decision allowing the withdrawal on grounds of duress, procedural unfairness or irrationality.  It would therefore be in the Applicant’s best interest to have his leave application determined to ensure that he would be safe to return to Pakistan rather than to allow his withdrawal application and thereby depriving him the benefit of a screening of his entitlement to challenge the Decision by way of judicial review.Hence, the Court refused the Applicant’s withdrawal application and proceeded with determining his leave application.

20.  As the Applicant has not advanced any grounds for judicial review, the Court could only focus on the question of whether the Decision was vitiated by errors of law, procedural unfairness or irrationality. 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 issues; the burden of proof and standard of proof; and correctly identified the issues.  The Board observed a very high standard of fairness.  The Board found that the Applicant failed to discharge his burden of proving his fears and risks.   It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  These are finding of facts 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, unreasonableness and irrationality.  The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  Accordingly, the Applicant’s application for leave to apply for judicial review was also refused.

Conclusion

21.  For the above reasons, the Applicant’s withdrawal application and leave application are 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)