WASEEM BAIG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2737/2018

[2021] HKCFI 1736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2737 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:

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 26 November 2018 (the “Decision”), the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 26 February 2018 (the “Notice”), his Supplementary Claim Form dated 26 January 2018 (“SCF”) and his record of screening interview on 13 February 2018.

2.  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 and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. For the benefit of the Applicant, the Court treated his complaints against the Director as directed at the Board also.  The SCF is the application form prepared by the Applicant setting out his claims for non-refoulement protection. The record of screening interview is a transcript of the Applicant’s answers to the questions raised by the immigration officer during the interview.  These are not decision of any administrative body.  They are not reviewable by judicial review. 

3.  The Applicant is a Pakistani national.  He sneaked into Hong Kong from the Mainland on 7 June 2011.  He was arrested by the police and referred to the Immigration Department on 13 June 2011.  On 14 June 2011, he made a torture claim under Part VIIC of the Immigration Ordinance.  His claim was rejected by an immigration officer.  He appealed to the Petition Team of Security Bureau.  His appeal was dismissed on 1 February 2014.  That decision was final.

4.  With the introduction of the Unified Screening Mechanism (“USM”) in March 2014, he was invited to make his claim for non-refoulement protection under all applicable grounds other than the torture risk ground.  He submitted the SCF claiming that he will be harmed or killed by his uncle (the “Uncle”), if returned to Pakistan because his Uncle objected to his proposed marriage with the Uncle’s daughter (the “Daughter”).

5.  In due course, his non-refoulement claims were assessed on all three remaining applicable grounds under the USM, namely BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of Decision dated 26 February 2018, the Director rejected his claims.  His appeal to the Board was dismissed by the Board’s Decision dated 26 November 2018.    

The Applicant’s case

6.  The following account of the Applicant’s case is mainly based on the information in his SCF which was prepared by him with assistance of the Duty Lawyer Service. 

7.  The Applicant said his Uncle is very rich and has hotels and businesses in Japan.  The Applicant and the Daughter fell in love with each other.  His family proposed a marriage, but the Uncle objected.  The Uncle wanted to take his Daughter to Japan.  The Daughter suggested to the Applicant to go to Lahore to have a “court marriage”. 

8.  In early April 2011, the Applicant travelled to Lahore.  There he was met by the Uncle, his three security guards and two others.  They assaulted him but he managed to escape.

9.  The following day, his Uncle, his three security guards and two policemen from Lahore went to the Applicant’s home and assaulted him.  They threatened to kill him.  His Uncle fired at him, but missed.  The Applicant fled to Gujranwala and stayed with a friend until his father sold a piece of land to finance his journey to Hong Kong.  He said he could not relocate within Pakistan because his Uncle could locate him with his political network.

The finding of the Board

10.  The Board identified many significant discrepancies between the Applicant’s evidence at different times, particularly about the shooting by his Uncle and the report he made to the police in Lahore.   The Board considered these stark inconsistencies relating to important details of two key claims, undermined the Applicant’s credibility overall and cast substantial doubt over his story in its entirety.  The Board found him shifting in his evidence.  It was not satisfied that the Applicant had told the truth about his reasons for leaving Pakistan.  The Board did not believe his evidence.  It did not accept his evidence about the assault in Lahore, the Uncle assaulting him at his home, threatening him and firing at him, that he had sought police protection but refused, and that his brother and father had been imprisoned on false charges at the instigation of the Uncle after he had left Pakistan.

11.  The Board was not satisfied that there is a real risk, a real chance or substantial or strong grounds for believing that the Applicant will be killed or subjected to serious harm amounting to torture, cruelty, inhuman, degrading treatment or persecution upon his return to Pakistan.  Accordingly, there was no factual basis to support a claim for non-refoulement protection on any of the three remaining applicable grounds.  Further, the Board was satisfied on the basis of the Country of Origin Information (“COI”) and the Applicant’s personal background that it would be neither unreasonable nor unduly harsh to require the Applicant to relocate to another area of Pakistan to avoid the harm from his Uncle or the risk.

Grounds for judicial review

12.  The Applicant lodged a nine-page affirmation in support of his application.  In essence, he disagreed with the finding of the Director in the Notice and the finding of the Board in the Decision.  He complained about procedural unfairness, unfair weighting given on the COI, and bias on the part of the Director and the Board.

13.  His complaint of procedural unfairness revolved around the lack of legal and language assistance.  He said that he was not given legal assistance in preparation for the appeal before the Board and at the hearing of the appeal.  He also complained that the majority of the documents in the appeal bundle were in English and without translation.  He said the appeal bundle was never read back to him.  He was at a loss in understanding the reasons for rejecting his case.  As a result, he was also deprived of the opportunity to make a full application for leave to apply for judicial review. 

14.  In Re Zafar Muazam[5], Re Zunariyah[6], Re Zahid Abbas[7], Re Tariq Farhan[8], and Re Lopchan Subash[9], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[10] nor the judgment of FB v. Director of Immigration[11] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether he was prejudice by the lack legal representation.

15.  The Applicant had the benefit of legal representation in presenting his case to the Director.  He was not legally represented before the Board.  However, all the benefits that legal representation could have afforded him were contained in his written submissions, non-refoulement claim form and answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board.  The Applicant suffered no prejudice due to lack of legal assistance in preparing for the appeal and lack of legal representation before the Board.

16.  The Applicant had the benefit of the interpretation services of a qualified interpreter in preparing his non-refoulement claim form and at the screening interview and in presenting his case to the Director.  He also had the services of a qualified interpreter at the oral hearing before the Board.  The appeal bundle is basically made up of his non-refoulement claim form, the record of the screening interview and the decision of the Director in the Notice, including the COI.  He certainly knew what were in the non-refoulement claim form prepared by him and the record of the screening interview which he attended.  The record had been read back to him and he signed to acknowledge that he understood and agreed with the contents and that no amendment was necessary. Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips.  It is not open to him to complain about procedural unfairness when he did not do the minimum to pursue his interest.

17.  The Notice of the Director was issued to him on 26 February 2018.  It was not until 19 September 2018 that the oral hearing was held.  The Notice is in English and, unfortunately, no translation was provided.  He cannot expect these documents to be fully translated for him.   He had in between the issue of the Notice and the oral hearing nearly seven months to seek assistance from among his own circle and ethnic community.  Indeed, he had access to interpretation services as reflected in his affirmation and Notice of application for leave to apply for judicial review filed in connection with this application which were very well written in English.  Also, he could have sought assistance from the interpreter at the oral hearing before the Board. 

18.  His complaint about lack of translation of the Decision is frivolous.  The Decision was made after an oral hearing during which he had the benefit of interpretation services.  A translation of the Decision of the appeal which was already made could not change the Decision or the outcome of the appeal.  The Court accepted that he may suffer some inconvenience, but not prejudice, in the preparation of his application for leave to apply for judicial review.

19.  The prejudice suffered by the Applicant as result of lack of legal and language assistance is more apparent than real.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board.  His complaint about lack of legal and language assistance is over-exaggerated.

20.  As for his complaint about bias on the part of the Director and the Board as well as the unfair weighting given to different information in the COI, the COI relied on by the Director and the Board are all from credible and official sources which the Applicant had no complaint.  As for the weighting to be given to conflicting information in the COI, it is a question of fact exclusively within the province of the Board as the tribunal of fact.  The Director fairly referred to conflicting information in the COI.  There was no attempt to pick and choose particular COI or information in the COI to damage the Applicant’s case.  The Applicant could identify no evidence of bias. 

21.  The Applicant suggested that the Board erred in not believing him because of the inconsistencies and discrepancies in his evidence.  He argued that it had been a long time since the incident occurred and he had suffered a lot of mental stress which almost made him forget a lot of things in proper order.  The Board had actually allowed for the possibility of failure of memory due to lapse of time: see paragraph 52 of the Decision. The inconsistencies were not about order of event but particulars of significant events which one would most unlikely forget.  The Board’s assessment of credibility could not be criticised as being unreasonable or irrational.

22.  As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of facts by the Board.  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.  The court will only scrutinise 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[12]. 

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 the three applicable grounds under the USM; 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 Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Decision satisfied 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.

Conclusion

24.  For the above reasons, leave to apply for judicial review is 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] [2018] HKCA 549

[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] cacv 2/2018, (unreported) 23 March 2018

[6] [2018] HKCA 14

[7] [2018] HKCA 15

[8] [2018] HKCA 17

[9] [2018] HKCA 37

[10] (2004) 7 HKCFAR 187

[11] HCAL 51 of 2007, (unreported) 5 December 2008

[12] [2018] HKCA 524 at para 14(1)