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HCAL 2973/2018
[2023] HKCFI 2228
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2973 of 2018
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BETWEEN
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Atif Azeem |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
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 (the “leave application”) to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 14 December 2018 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 23 May 2017 (the “Notice”). In his affirmation dated 24 December 2018, he also sought to challenge an unidentified decision of the Director, which in the context could only refer to the Notice. The Applicant 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 that the application may be justly determined on paper without an oral hearing.
2. On 12 January 2023, the Applicant was informed that a decision relating to his application will be ready for handing down soon. On 27 January 2023 while the Form CALL-1 is in the course of preparation, he filed an affirmation seeking to withdraw his leave application because “[his] problem is solved”. As a decision has been reached on the merits of his leave application and his reason for withdrawing his leave application is consistent with the Board’s Decision, his application to withdraw is refused. The Court file was then misplaced and hence the delay in handing down of this Form CALL-1.
3. 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[1] against the Notice and the Applicant has invoked those procedures. The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[2].
4. The Applicant is a Pakistani national, now aged 39. He entered Hong Kong on 10 May 2009 illegally and surrendered to the authorities on 11 May 2009. Then he raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 14 May 2009. That claim was rejected by the Director on 3 September 2013. That decision became final. Following the implementation of the Unified Screening Mechanism (“USM”), his claim was further assessed on BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. By his Notice, the Director rejected his claim based on the remaining three grounds.
5. The Applicant appealed to the Board against the decision of the Director in the Notice. His appeal was dismissed by the Board’s Decision. He now applies for leave to apply for leave to apply for judicial review of that Decision.
The Applicant’s case
6. 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 would be harmed by his cousins who were borne to his eldest uncle (“Cousins”), if refouled to Pakistan.
7. The Applicant was born in Lahore, Punjab of Pakistan. He has completed class 9 education. His paternal grandfather owned a piece of residential land (the “Land”) which was three Kanal in size and worth around 40 to 50 million Pakistani Rupees. His father and his five paternal uncles were entitled to equal shares in the Land.
8. In early 2008, his eldest uncles sent his sons (i.e. the “Cousins”) to occupy the Land. A fight broke out between the Cousins’ group and the Applicant’s group. The Applicant was slapped, attacked with gun butts. and suffered injuries in his nose and mouth. The other members of his group were also injured. Police were informed. The groups fled before the police arrived.
9. About two to three months after the fight, his cousin Ghulam, who supported the Applicant, went to the Land to seek revenge but was shot dead by one of the occupants on the Land. The Applicant believed the shooter was affiliated with the Cousins. He called one of the Cousins, Khalid, and confronted him about Ghulam’s death; but Khalid threatened to kill him. The Applicant’s father and uncles reported the matter to the police in Wahdat Colony but the police did not take any action. After the incident, the Applicant and his family did not dare return to the Land again.
10. A few days later, the Cousins and their group of about 20 to 50 people went to the Applicant’s home to try to kill him and his brother. Some of them were armed with weapons and guns. His family hid inside the house and called the police, but no police showed up. The group left after about 3 to 4 hours. Then, the Applicant and his brother fled to Karachi to stay with their father’s friend. About nine months later, his father learnt that the Cousins were going to Karachi to kill the Applicant and his brother and told them to flee. They fled to another location and stayed there for about two to three months. Then, they fled to Hong Kong via Bangkok and Mainland China.
11. The Applicant claimed that the Cousins were supporters of the Pakistan People’s Party (“PPP”). Though they were not officers of the PPP, they financially supported the candidate of the PPP and were very close to a Member of National Assembly and a Member of the Provincial Assembly who was influential in Wahdat Colony. He believed one of the Cousins Khalid Sarwar won the union council election in constituency number 102 of his area.
12. After his arrival in Hong Kong, the Cousins were still occupying the Land. His family had sued the Cousins in court. Negotiation between them was still ongoing. His family had been harassed by the Cousins continuously and moved to Lahore in early 2016. His brother was attacked by one of the Cousins in February 2017 over a heated exchange.
13. The Applicant did not believe the Pakistani police would help him, as the police took no action in relation to his earlier complaints. He did not believe internal relocation feasible, because even after he had fled to Karachi the Cousins went there looking for him. He would be easily found by the Cousins no matter where he relocates in Pakistan.
The finding of the Board
14. The Board assessed the Applicant’s claim on the basis of the case as he asserted. It found no evidence that there is any personal and real risk of the Applicant being subjected to a BOR 2 risk on his return to Pakistan; that his risk of being subjected to ill-treatment would be low; and that his feared ill-treatment arising from the land dispute was not on account of his race, religion or nationality or membership of a particular social group and hence falls outside the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.
15. On the basis of authoritative and credible Country of Origin Information (“COI”), the Board found, despite some problems with the police, state protection is available as the Pakistani government has taken steps to improve police professionalism and to monitor police conduct. The COI also showed that internal relocation is generally feasible, though the rights of freedom of movement within the country, foreign travel, emigration and repatriation are “limited in practice”. The Board found, being an able-bodied adult with nearly nine years’ education and with his experience, it would not be unduly harsh for him to relocate to cosmopolitan cities like Islamabad or Lahore where it would be difficult for his Cousins to locate him.
16. The Board noted that civil and criminal remedies are available in resolving land disputes in Pakistan, although the court system suffers from various problems, including corruption and delay.
17. The Board also noted a significant change in the political scene. The PPP was no longer in power in Lahore after the 2015 Union Council Election and no member of the PPP had held office since April 2016. The member of National Assembly in Wahdat Colony, constituency NA 126 elected in 2013 was not from PPP. The feared political connections held by the Cousins and their influence would be minimal.
18. Applying the law applicable to non-refoulement protection under the four applicable grounds under the USM to the case as asserted by the Applicant and its finding on the availability of state protection and internal relocation and change in political scene, the Board concluded that the Applicant is not entitled to protection under any of the three remaining applicable grounds under the USM. Accordingly, the Board dismissed his appeal against the Notice.
Legal principles applicable to judicial review
19. 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[6].
Grounds for judicial review
20. The Applicant had not advance any grounds for judicial review in the Form 86. In his supporting affirmation, the only complaint he raised was that the Board disregarded his dangerous situation. In the absence of specific grounds of application, the Court in an application for judicial review 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. The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Pakistan. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.
Conclusion
21. 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 relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicants’ claim on the basis of the case as he asserted but found the risk of harm he would face on his return to Pakistan was low. On the basis of authoritative and credible COI, the Board was also satisfied that state protection and internal relocation are available to prevent or avoid the risk, if it turned out to be real. It was on that basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the remaining three applicable grounds. These are finding of facts which are exclusively within the province of the Board to make, 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 not detect any 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. The proposed judicial review has no realistic prospect of success. Accordingly, leave to apply for judicial review is refused.
Dated 30th day of August 2023.
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( Allen LEE )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 30 August 2023
Atif Azeem
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 30 August 2023
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7291/17/5/297/P1457
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 697/17 (Formerly RBCZ 2001196/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Section 37ZR of the Immigration Ordinance, Cap. 115
[2] [2018] HKCA 549
[3] 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”)
[4] 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
[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[6] [2018] HKCA 524 at [14(1)]
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