USMAN JAVED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 816/2020

[2022] HKCFI 1862

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 816 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 oral submissions by the Applicant in open court;

1.         Leave to apply for Judicial Review refused; and

2.         There be no order made in respect of the withdrawal application on 27 April 2022

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  There 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 / Non-Refoulement Claims Petition Office (the “Board”) dated 27 April 2020; and (2) his application by way of affirmation filed on 27 April 2022 to withdraw that application (the “Withdrawal Application”).  

2.  The Applicant is a national of Pakistan, now aged 36.  He had applied for non-refoulement protection under all applicable grounds under the Unified Screening Mechanism including Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3]. His claim was dismissed by the Director of Immigration (the “Director”) via his Notice of Decision dated 16 July 2014 (the “Notice”).  He appealed to the Board.  His appeal was dismissed by the Board’s decision dated 9 November 2016 (the “2016 Decision”).  That decision became final.

3.  On 28 December 2016, the Director invited the Applicant to submit additional facts by 11 January 2017, if any, which he considered relevant to his claim but which he might have omitted due to misunderstanding, including a claim on the ground of risk of arbitrary deprivation of life under BOR 2 Risk ground[4].  The Applicant did not respond.  No further facts having been submitted, the Director issued a Notice of Further Decision on 3 February 2017 to the effect that the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under BOR 2 being violated (the “Further Notice”).

4.  The Applicant appealed against the Further Notice.  His appeal was dismissed by a differently constituted Board by its decision dated 27 April 2020 (the “2020 Decision”). On 5 May 2020, the Applicant filed his Leave Application seeking judicial review of the 2020 Decision.

5.  On 27 April 2022, the Applicant filed the Withdrawal Application seeking to withdraw his Leave Application.  In his affirmation, he said:

“I want closing JR case No 816/2020 Dated 05 May 2020, I want go back my home country. I have already compromise my against party. Thanks.”

While it is clear that the unequivocal intention of the Applicant was to withdraw his application for judicial review, it is not entirely clear if the decision to withdraw is an informed decision freely made and that it is safe for him to return to his home country.  To ensure that the withdrawal, if allowed, will be valid, the Applicant was given directions to file an affirmation or a statement stating:

(i)    how was the problem in his home country solved;

(ii)   whether he still anticipates any real chance that he will be harmed or otherwise ill-treated by the opponent political party, if he returns to his home country; and

(iii)  that he understands that if his application to withdraw is approved, the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office dated 27 April 2020 dismissing his appeal against the decision of the Director of Immigration in the Notice of Further Decision dated 3 February 2017 stands.

He was also invited to file his submission, if so desired and was informed that his Withdrawal Application as well as his Leave Application (if the Withdrawal Application is refused) will be determined on paper, regardless of whether the above directions have been complied with.

6.  On 20 May 2022, the Applicant replied by letter confirming his wish to withdraw his application for judicial review; that he believes his life is safe but did not confirm his understanding that if his Withdrawal Application is approved the 2016 Decision remains valid.

The Applicant’s case and the 2020 Decision of the Board

7.  The Applicant’s claim for non-refoulement protection is based on his fear and risk of being killed by his girlfriend’s family for honour and prosecuted for rape of his girlfriend which he had not committed.  His case is that he was in love with Mehnaz.  Under Pakistani culture, boys and girls may not meet alone without approval from both families.  However, one day, he was caught by Mehnaz’s brother sitting next to Mehnaz.  He ran away, her brother was angry and accused him of tarnishing their family reputation.  Her brothers went to look for the Applicant at his home and threatened to kill him if they found him.  At the advice of his parents, the Applicant went to hide in his friend’s home.  Then, at the suggestion and through the arrangement of his father, he went to Mainland China on 22 January 2008.  From there, he sneaked into Hong Kong on 29 January 2008.  While he was in China, he was told by his father that police were looking for him and a warrant had been issued for his arrest for having raped Mehnaz.

8.  The Applicant’s claim based on the other three applicable grounds under the USM had been rejected by the 2016 Decision which is final.  Hence, his claim under BOR 2 Risk ground falls within a very narrow compass.  He has to show that he faces a real chance of arbitrary deprivation of life, if refouled.  At the hearing, the Applicant did not raise anything further and invited the Board to refer his case from the information in the Notice of Appeal and the hearing bundle.  The Board seemingly accepted his evidence, except about the rape charge, and proceeded to assess his claim on the basis of the case as he asserted.  It considered his claim based on honour killing and the allegation of rape.

9.  The Board found based on credible Country of Origin Information (“COI”), that since 2016, honour killing had become illegal in Pakistan.  On the basis of the Applicant’s evidence, there was no sexual relationship or physically intimate relationship between him and Mehnaz.  The Board found the shame that was brought on Mehnaz’s family was minimal and honour killing or inflicting serious bodily harm was not commensurate with the minor taint on the family’s reputation.  Given the lapse of 14 years (as at the date of the 2020 Decision) since the incident, the Board found Mehnaz’ brothers’ desire and motivation to avenge for such a minor dishonour must have very much diminished and they would also have been deterred from practising honour killing because of the legal consequence introduced since 2016.

10.  As for the risk of prosecution for rape, despite ample opportunities were given to the Applicant he was unable to provide the Board with documentary evidence of the alleged prosecution.  The Board dismissed his fear as speculative and not genuine.

11.  Accordingly, the Board found the Applicant would not face any real risk of arbitrary deprivation of life under BOR 2 Risk ground, if refouled to Pakistan.

The Withdrawal Application

12.  In purported compliance with the Court’s directions, the Applicant lodged his letter dated 20 May 2022 confirming his wish to withdraw his Leave Application.  He asserted:

“… I have requested to withdraw my leave application for Judicial Review because my problems were solved in Pakistan due to the change of the political party. I believe that my life is in safe in Pakistan right now as all my enemies are busy saving their own lives.

Now, I am humbly requesting to the honourable Judge to consider the withdrawal of my leave application and oblige me thereby.”

13.  While he confirmed his belief that he will be safe returning to Pakistan, the reasons he gave appear to be spurious.  His case all along was he will be harmed by Mehnaz’s brothers because of the shame he caused to their family and the false charge of rape, which had nothing to do with politics or political persecution, which would disappear with a change of political party.  Of course, it was the Board’s finding that the risk was low because Mehnaz’s brothers’ desire to kill for such a minor taint would have very much extinguished through lapse of time and the deterrence of criminal law. His second reason that his enemies are busy saving their own lives is even more spurious.  This Court could not be satisfied that the reasons he gave were genuine.

14.  What is more critical is that he even declined confirming his understanding that if his Withdrawal Application is allowed, the 2016 Decision remains in force and is final.  This Court could not be satisfied that his decision to withdraw is an informed decision made bona fide.  A withdrawal allowed may be invalid.  Accordingly, his Withdrawal Application was refused.  It becomes necessary for the Board to consider his Leave Application.

Legal principles applicable to judicial review

15.  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, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

16.  In his supporting affirmation, the Applicant advanced five grounds for his application leave to apply for judicial review.  They all revolve around procedural impropriety and misdirection in law.  These grounds are dealt with below.

Ground (1) – Procedural impropriety: Failure to consider if the reforms and means of relief provided by the Pakistani government is effective

17.  The Applicant’s complaint is as follows:

“Failure to properly apply para 2 of the UN committee against Torture General Comment No. 2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, cf, the [Board] and the Director Decision which focussed on whether such reliefs showed merely signs of positive improvement (see also JKF CACV 103/2014).”

18.  As summarised in paragraphs 9 and 10 above, the 2020 Decision was primarily based on the Board’s finding that honour killing was outlawed in 2016; the shame brought to Mehnaz’s family was minimal and not commensurate with the punishment by honour killing; and that Mehnaz’s brothers’ desire to exercise honour killing would have extinguished through lapse of time of 14 years and the deterrence of criminal law.  The Decision was not based on relief, police reform or state protection by the Pakistani government.  This ground has no relevance to the facts of this case and the finding of the Board.

Ground (2) – Procedural impropriety: Failure to conduct sufficient inquiry into the relevant Country of Origin Information (“COI”); failure to consider the Applicant would face serious risk from his enemies who will harm him because of his political and statistical view

19.  For reasons as given in the above paragraph, the basis of the Board’s 2020 Decision had nothing to do with the Applicant’s political and statistical view.  In paragraph 16 of the Decision, the Board mentioned that the COI used in the 2014 Decision was no longer before the Board, and the Board confirmed that for the purpose of the case before it there was no need to refer to any specific COI.  This ground was probably copied from some other cases with facts substantially different from those of the present case.  Further, the Applicant did not challenge the Board’s finding that honour killing was outlawed since 2016 and made no reference to any COI which may be relevant. 

Ground (3) – Procedural impropriety: Failure to [give] reasons for assessment of Lack of BOR 2 risk and/or sufficient basis to support conclusion of lack of BOR 2 risk

20.  The Board referred to the legal principles applicable to BOR 2 risk in paragraphs 7 to 9 of the Decision.  It explained in paragraph 17 that the risk of harm was low because Mehnaz’s brothers’ desire and motivation to kill the Applicant for honour diminished after a lapse of 14 years and because of the deterrence by criminal law which outlawed honour killing.  It explained in paragraph 18 why it did not accept the Applicant’s evidence about the false charge of rape.  Obviously, the Board had correctly identified the issues which the Applicant needs to prove to establish a claim under BOR 2 risk ground and made the necessary finding of fact.

Ground (4) – Misdirection in law

21.  Under this ground, the Applicant alleged the Board of “failing to take into account the considerations of psychological strain and threats to [him] personally or threats to [him] directly to kill [him]”. The Applicant had made no specific complaint about psychological ill-treatment or any adverse psychological effect the threat had on him.  There is no factual basis in the Applicant’s complaint about the Board’s failing to take into account the considerations of psychological strain and threats on his person.

Ground (5) – Procedural impropriety: Failure consider the Applicant’s fear

22.  Essentially for the same reasons as given in the above paragraph, this Court was satisfied that the Applicant’s fear had been adequately considered by the Board.  These are finding of facts for the Board, which this Court would reconsider in its overall scrutiny of the Decision.

Overall scrutiny of the Board’s Decision

23.  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 BOR 2 Risk ground under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicants’ claim for non-refoulement protection under BOR 2 Risk grounds.  There was no error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.   These are finding of facts which are exclusively within the province of the Board, which the Court in a judicial review will not interfere unless such finding involved error of law, procedural unfairness and irrationality.  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

24.  For the above reasons, leave to apply for judicial review was refused.

25.  There are two options open to this Court.  The Court may allow his withdrawal application and make no order on the Leave Application as it has been withdrawn.   Alternatively, the Court may dismiss his leave application for want of jurisdiction and then dismiss his Withdrawal Application or make no order because of absence of subject matter for decision.  To adopt the first course, the Court would have to make some enquiries and/or satisfy itself that his decision to withdraw is a well-informed decision voluntarily made.  The alternative course is a neat and tidy resolution, which the Court is entitled to adopt as a matter of law.  The Applicant’s confirmation in his withdrawal affirmation is consistent with the Director’s finding that it is safe for his return to Pakistan.  In the interest of the Applicant’s urgency, it is the more preferable course.  Either way, the Applicant gets what he desires to obtain.

Conclusion

26.  For the above reasons, the Applicant’s Leave Application was dismissed.  That application having been dismissed, no order is made in respect of the Withdrawal Application.

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)