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HCAL 2450/2020
[2024] HKCFI 968
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2450 of 2020
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BETWEEN
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Hussain Qamar |
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 be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 16 December 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Petition Office (the “Board”) dated 4 December 2020 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 14 January 2019 (the “Notice”).
2. The Applicant had requested an oral hearing. A hearing was scheduled and notice of hearing was sent to him by post on 14 February 2024 to his address as stated in his latest correspondence dated 28 November 2023 and as confirmed by the Immigration Department on 6 February 2024. It has not been returned through the post. The Applicant never informed the court of any change of address thereafter. There is nothing to suggest that he had not received the notice of hearing or had moved. However, he did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.
3. The Applicant is a Pakistani national. He entered Hong Kong illegally on 6 November 2007 and was arrested on the next day. On 20 November 2007, he raised a torture claim. His claim was rejected by the Director on 7 September 2012. He did not appeal that decision. On 16 October 2014 he filed a claim for non-refoulement protection against Cruel, Inhuman or Degrading Treatment or Punishment. In due course, his claim was assessed on the three remaining applicable grounds under the Unified Screening Mechanism (“USM”), namely: BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3]. His claim was dismissed by the Director’s Notice. His appeal against that Notice was dismissed by the Decision of the Board. He now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
4. 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 claims he would be harmed by his granduncle’s son ie his second cousin (the “second cousin”) upon his return because of a land dispute and by the Pakistani police because of a false claim against him.
5. The Applicant, now aged 43, was born in Azad Kashmir, Pakistan. He has seven years of education and thirteen years of working experience. He is a supporter of the Muslim Conference Party.
6. The Applicant’s grandfather and his brother (ie the Applicant’s granduncle ran a family cloth business. After his grandfather passed away, the Applicant’s father and his brothers (ie the Applicant’s uncles) bought a piece of land (the “land”) using his grandfather’s savings. The land was registered in the name of the Applicant’s father.
7. Then the Applicant’s second cousin wanted to occupy about half of the land, claiming it was bought with the money generated by the family business passed down from the Applicant’s grandfather to the Applicant’s father. His second cousin was a member of the Pakistan People’s Party (“PPP”) and a highly influential person having good relationships with the police.
8. Between 1992 and 1999, the second cousin and the Applicant’s father argued over the land. In 1999, the Applicant’s father left for Hong Kong. The Applicant and his brothers became responsible for maintaining the land. They built a new house on the land in around 2002. They walled up the land and employed armed security guards to protect the house because his second cousin had attempted to destroy it. The Applicant also claimed that his second cousin attacked him on numerous occasions between 1998 and 2007.
9. In 2006, his second cousin framed the Applicant’s younger brother (Rizwan) for a murder committed by his second cousin’s son and his friends. The Applicant’s elder brother (Qurban) paid 100,000 Pakistan rupees to the police in exchange for their agreement not to arrest Rizwan. Then Rizwan moved to Lahore for fear that the case against him would be reopened.
10. Later, Rizwan returned home to visit his family. On 30 August 2007, his second cousin, his son and his men fired at the Applicant and Rizwan at the entrance of the village. The Applicant and Rizwan escaped and made a report at the Afzalpur Police Station. They were detained and accused of shooting at their uncle. On the next day, the Applicant was taken to a torture cell where he was brutally assaulted with fists, kicks and baton for the purpose of forcing him to admit shooting at his second cousin. The Applicant was assaulted to the point of losing his consciousness. He only regained consciousness the next day. Then, Qurban instructed a lawyer and secured their release on bail on 5 September 2007.
11. On around 10 or 11 September 2007, the Applicant received a works order from Bashir Butt for installing an iron grill at his house which had been burgled the night before. The Applicant and his assistant went to the house to take measurements. Butt paid him a deposit of 50,000 Pakistani Rupees. At that juncture, his second cousin appeared and, together with Butt, accused the Applicant of burgling into Butt’s house the day before and told him that the burglary had been reported to the police. When the Applicant returned to his shop, his assistant told him that the police had come looking for him.
12. The Applicant attempted to reach a settlement with his second cousin and Butt through the mediation of the Muslim Conference Party, but failed. Thus, he closed down his shop and went into hiding. He set up another shop in Jatlaan Gorsian. At that time, Butt kept calling him offering him jobs, which the Applicant thought were attempts to lure him out from hiding.
13. As the Applicant and Rizwan had not answered bail relating to the shooting incident, a warrant for their arrest was issued on 20 September 2007 for both the shooting incident and the burglary. Believing that he would not get justice from the corrupt government, the Applicant fled to Hong Kong to seek protection. He believes he would not be able to obtain state protection and that internal relocation would not be feasible.
The finding of the Board
14. The Applicant testified before the Board. His evidenced was vague and unclear. He was unable to recall some of the most important details in his claim, such as the political party to which his uncle was affiliated. The evidence in his testimony is inconsistent with his account in the NCF. He was vague about the circumstances leading to his detention by the police in relation to the shooting incident. He could not even recall whether he was arrested at the police station or at his home. Contrary to what he said in his NCF, in his testimony he denied he had been taken to the torture cell and brutally assaulted to the point of losing his consciousness. The Applicant produced a police report successfully registered by Qurban which was accepted by the police. This report recorded a different version of the shooting event, namely that the Applicant and Rizwan snatched the firearm from his second cousin and others and fired at them in self defence, hitting his second cousin’s leg. This report flatly contradicted his allegation that the police refused to register his complaint about the shooting incident. All these cast doubt on the Applicant’s credibility and the veracity of his claim.
15. The Board considered it inherently improbable that the Applicant and Rizwan would be unharmed when his uncle and others allegedly fired at them with Kalashnikov automatic rifles and that the incident ended with his uncle being shot in his leg. The Board considered it highly incredible that he would be able to perform welding work just about a week after he was brutally beaten by the police to the point of losing his consciousness. The Board also found it illogical and unbelievable that Butt had called him to offer him jobs to lure him out from hiding because by then he must have clearly learned about Butt’s collusion with his uncle while Butt must have known that such an attempt would be futile.
16. The Applicant’s case is that his second cousin targeted him and Rizwan but not any of his other brothers. There was also no evidence that his second cousin had harassed his family. Neither the Applicant nor Rizwan was the registered owner of the land, which was held in his father’s name. Against these surrounding circumstances, the Board found the Applicant’s claim illogical and incapable of belief. It rejected his evidence. Having dismissed the only factual basis of his claim for protection, namely the alleged threats from his second cousin and the Pakistani police, the Board found he had failed to establish he would be subject to any of the proscribed risks of harm upon his return to Pakistan.
Legal principles applicable to judicial review
17. 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[4].
Grounds for judicial review
18. The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, the only complaint he raised was that he disagreed with the Board. In essence, he is seeking to challenge of the Board’s finding of fact that his evidence is not credible and that he had failed to prove the factual basis to support his claim for protection. This is not permissible unless the Board made the finding as a result of error of law, procedural unfairness or that the Decision is irrational. 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 irrationality in the Decision.
19. 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 found the Applicant’s evidence incredible and rejected his evidence. The Applicant had therefore failed to establish the factual basis in support of his claim for protection. As he bears the burden of proof, albeit on a low standard, this finding is necessarily fatal. 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 four applicable grounds. The Board gave detailed account of its analysis of the evidence and reasons for its finding of the Applicant’s incredibility. 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 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, the application for leave to apply for judicial review is refused.
Conclusion
20. For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.
Dated 3rd day of April 2024.
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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 his 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 3/4/2024
Hussain Qamar
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 3/4/2024
Torture Claihis uncle Appeal Board /
Non-Refoulement Claihis uncle Petition Office
Putative Respondent’s ref. no.:
USM 15363/19/1/236/P3061
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 5056/18 (Formerly RBCZ 2000027/18)
QA T/C 220/08 (Formerly RBCZ 1423/07)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] 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”)
[2] 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
[3] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[4] [2018] HKCA 524 at [14(1)]
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