HUSSAIN MUSHTAQ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2951/2018

[2022] HKCFI 2574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2951 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 by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 13 December 2018 (the “Second Decision”) affirming the decision of the Director of Immigration (the “Director”) in his notice of further decision dated 20 January 2017 (the “Second Notice”).

2.  The Applicant is a Pakistani national, now aged 42. He entered Hong Kong in August 2007 illegally and was arrested on 4 February 2008. On 20 March 2009, he raised a torture claim.

3.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. The Director rejected his claims under the first three grounds by his notice of decision dated 27 October 2014 (the “First Notice”). Then, the Director invited the Applicant to submit additional information, if any, which he considered relevant to his claims on all applicable grounds, specifically including BOR 2 Risk ground, in case he had omitted them due to any misunderstanding. The Applicant did not submit any information within the time allowed. Having reassessed his entitlement, the Director rejected his claim under BOR 2 Risk ground in his Second Notice.

4.  The Applicant appealed to the Board against the two Notices. On 19 August 2016, the Board dismissed his appeal in respect of the First Notice (the “First Decision”). On 13 December 2018, by its Second Decision, the same Board dismissed his appeal against the Second Notice. On 21 December 2018, the Applicant applied for leave to apply for judicial review of the Second Decision. It should be noted that the First Decision is final and binding on the Applicant.

5.  The Applicant did not request an oral hearing. Having considered the nature of the application, the issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

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 members of Mutahida Quammi Movement party (“MQM”) upon his return because he refused to take part in their illegal activities.

7.  The Applicant was born in Karachi, Pakistan. He received college education and had worked as a salesperson at a medical store in Karachi. He also made money trading stocks on the Karachi Stock Exchange. He married a Hong Kong resident in Hong Kong on 2 September 2009. His wife gave birth to their son in Hong Kong on 30 March 2011.

8.  The Applicant participated in activities organized by MQM in around mid-2006, thinking that MQM worked for the welfare of the general public. He became a formal ordinary member of the party. During the first two months, he was asked to do clerical work for the party.

9.  He was assigned to a leader, Polu Bhai (“PB”), in around August or September 2006. He together with a group of 8 to 10 young members were tasked with extorting money from shop keepers in Usmania Muhajir Colony. He was told to fire at the stores if their owners refused to pay. He saw some shop keepers being beaten up severely by MQM members for refusing to pay. He claimed to have taken no part in the illegal activities and said that he always hid behind his peers. He said that the police turned a blind eye to MQM’s activities because they also received a share of the extortion money.

10.  In November or December 2006, the Applicant told PB that he wanted to quit MQM. PB refused and issued death threats to him. The Applicant repeated his intention to quit in the beginning of 2007. Again, PB responded with death threats. The Applicant ceased participating in MQM’s activities afterwards and refused to answer MQM’s call.

11.  One day, the Applicant was escorted by members of an extortion group to see PB. PB hit his forehead with the butt of a pistol and cut his right wrist. PB assaulted him for half an hour and warned him to show up for MQM activities next time he was called or he would receive further harm. He received three or four stitches in a hospital and took three to four months to recover.

12.  The Applicant did not make any report to the police as he had seen police officers in PB’s office and saw them turning a blind eye to MQM’s illegal activities. He believed the police would not help him.

13.  The Applicant fled to Attock in around May 2007 and stayed there for two months. His friends told him that PB knew he had moved to Attock. He believed PB would be able to locate him easily. He flew to Mainland China and then sneaked into Hong Kong. His friends told him that PB and MQM were still looking for him. He believed MQM had significant political influence and would harm him upon his return.

The finding of the Board

14.  In its First Decision, the Board found numerous discrepancies between the accounts given by the Applicant to the Immigration Department and in the evidence before the Board. The Board considered the Applicant’s claim about the illegal activities of MQM were largely consistent with the Country of Origin Information. It accepted that the Applicant had joined MQM, attempted to quit and fled to Attock to avoid PB, but found that he did not give his true reason for leaving Pakistan or for choosing to go to Hong Kong. The Board noted that in the NCF, the Applicant claimed he left Attock because his friends, Imran and Shoaib, were beaten up and forced to reveal his whereabouts. But in the hearing before the Board he said Imran or Shoaib had not revealed his whereabouts and that he left Pakistan because he feared MQM might be able to locate him through the supporters and police in Attock. The Board also noted that he claimed to have no intention of coming to Hong Kong when he left Pakistan, and that he only decided to do so when persuaded by some boys after arriving in Guangzhou. The Board found it improbable that as a man of his abilities and education, he would have failed to plan ahead of what he should do before going to Guangzhou on a business visa.

15.  The Board further found that as many years had passed since the Applicant left Karachi the chances of future risk of harm from PB or the MQM was “so remote to be negligible”. It also found that as a man of his age and ability, he could safely relocate to places such as Attock or Rawalpindi and that he would face no real or substantial risk of harm if he so relocates. The Board therefore found in the First Decision that he would not face any Torture, BOR 3 or Persecution risks upon his return to Pakistan.

16.  In the Second Decision, the same Board noted that the Applicant had failed to provide any additional information regarding BOR 2 Risk claim, despite having been invited by the Director to do so earlier. On the basis of its finding of fact in its First Decision, particularly the negligible risk of harm the Applicant would face on his return and the viability of internal relocation, the Board found he had failed to establish any risk of harm under BOR 2 Risk. It therefore dismissed his appeal against the Second Notice.

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[5].

Grounds for judicial review

18.  The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, he asserted that he disagreed with the Second Decision because his life in Pakistan is a “big danger”. In the absence of specific grounds of application, the Court 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

19.  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 burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant incredible because of the many discrepancies in his evidence. It found he was not telling the truth about his reasons for leaving Pakistan and for coming to Hong Kong. That was a finding of fact solely within the province of the Board. It was on that basis that the Board found that he had failed to prove his entitlement to non-refoulement protection under any of the first three applicable grounds in the First Decision and for the same reason failed to prove his entitlement under BOR 2 Risk ground in the Second Decision. 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 did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The proposed judicial review has no realistic prospect of success.

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