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

HCAL 2729/2019

[2025] HKCFI 6326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2729 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and the Applicant’s submissions in open court.

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 17 September 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 6 September 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (the “Notice”), refusing his application for non‑refoulement protection.

The Applicant’s claim

2.  The Applicant is a Pakistani national. His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. The hyperlink to the Board’s Decision is included below[1] for reference. In gist, he claims he will (1) be harmed or killed if returned to Pakistan because he had been wrongfully detained, tortured and charged with offences in 2012 which he did not commit and (2) be harmed because he is a Christian.

The Board’s finding

3.  The Applicant gave different versions of the events which happened in 2012 leading to his fleeing Pakistan. He submitted a large number of documents, including First Information Reports and court documents in support of his claims. The Board noted from the country of origin information (the “COI”) that fraudulent documents of many kinds are readily available in Pakistan because of the high level of corruption in public institutions in Pakistan. The COI mentioned specifically the First Information Reports from the police as an example of one type of fraudulent documents. The documents submitted by the Applicant are of poor quality. Many of the documents are unclear and partially illegible. The translations in the documents note that significant parts of many of the documents are illegible. The Board also noted anomalies on the face of some of the documents. For example, documents which purport to be arrest warrants and “Advertisement order summons accused person (sic) have key parts, including dates and names of the accused are left blank. Some documents do not appear to be consistent with any version of the Applicant’s claims. Without making a finding that the documents are fraudulent, the Board was able to reach the conclusion that they are of little assistance as independent corroboration of the Applicant’s claims.

4.  As for his written evidence and oral testimony, the Board noted significant inconsistencies between them in relation to important details. The Applicant failed to answer questions directly and appeared to shift and change his evidence when confronted with problems, for example, his claim that he was arrested because he was a prominent person as his father was a member of the legislative assembly. Despite having given him allowance for lapse of time and failure of memory, the Board had significant doubt about his truthfulness. Because of the numerous and significant inconsistencies in his evidence, the Board did not accept his account of events which he said caused him to leave Pakistan. It did not accept he was tortured while in police custody, or was falsely charged with offences, or that he was on bail and facing outstanding charges at the time of his departure from Pakistan.

5.  The Board accepted he is a Christian. It accepted on the basis of the COI that Christians in Pakistan had been subjected to wrongful arrest and mistreatment in detention and that they have been targeted in mass casualty terrorist attacks, most recently at Easter 2016. It also accepted COI from the United Kingdom that the Pakistani authorities are generally willing and able to provide effective protection to Christians and Christian communities. It noted that the Applicant was able to achieve a reasonable level of education and was employed until his departure from Pakistan in a position which does not reflect any significant level of discrimination on religious grounds. It noted, too, that his father and all his brothers, except one who had to look after their mother, are employed by the same employer. On the basis of the COI, while the Board accepted that Christians in Pakistan in general face a level of discrimination, it was not satisfied that the risk to the Applicant is sufficiently serious to meet the threshold for a real and substantial risk establishing a well-founded fear of persecution.  As for his fear of being killed in an act of communal or terrorist violence, the Board found such harm is remote and does not amount to a real or substantial risk or possibility. Applying the law applicable to non-refoulement protection to the facts found, the Board was not satisfied that the Applicant had substantiated his claim to protection under any of the applicable grounds under the Unified Screening Mechanism (the “USM”). Hence, it dismissed his appeal against the decision of the Director in the Notice.

Grounds for judicial review

6.  At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant submitted a four-page submission advancing the following grounds:

(1)  the Decision was Wednesbury unreasonable or irratio (sic);

(2)  the Board failed to give any or sufficient reason for dismissing the appeal;

(3)  the cherry-picking, biased and formula approached adopted by the Board in coming to its conclusion is highly unfair and prejudiced;

(4)  the present proceedings are not duplicate;

(5)  the Board’s assessment of his credibility is procedurally unfair and/or irrational;

(6)  the Decision did not meet the high standard of fairness and/or irrational;

(7)  the Board erred in law and/or acted in a procedurally unfair manner by wholesale dismissing his evidence based on vague (sic) on assertions that these amounted to “hearsay or “speculation”;

(8)  the Board should adopt a holistic approach to evidence by considering all relevant considerations/evidence as an aggregate whole rather than in isolation;

(9)  the Board does not appear to have considered any humanitarian grounds or getting information in making his finding that his account was inherently implausible;

(10)  the Board’s assessment of his credibility was therefore procedurally unfair and/or irrational;

(11)  the adjudicator excluded significant aspects of no evidence which and considered amounted to hearsay or speculation the adjudicator stated that:

“While hearsay is not inadmissible in itself” the weight which can be attached to such evidence is greatly reduced is greatly reduced by virtue of the evidence.

Speculation on its own can rarely be any aspect of the Applicant case.

In the circumstances, I am unable to gain any weight to the Applicant’s evidence which amounts to hearsay or speculation.”

(12)  For the reason stated above the decision did not meet the necessary high standards of fairness and/or was other unlawful;

The COL (sic) material submitted before the Board shows that the capital punishment is still very much implemented and executed in Pakistan;

(13)  To, that end I respectfully seek to apply for judicial review and request an oral hearing and granted my judicial review application from Hong Kong High Court;

(14)  I should be happy to provide the Court with any further information or assistance hey may require in this regard to my application; and

(15)  Further, there must be “serious reason for considering” that the murder was committed, and the interpretation of the exclusion clauses must be restricted.

7.  These grounds are all lacking in particulars. The Applicant said that someone wrote these grounds in consultation with him. He said he understood them. However, when particulars were requested, the Applicant was unable to provide any. All that he could just say was that the grounds were all real. Then, he asked the Court to look at the documents and check the condition in his country. These grounds are just statements and prayers for relief sought. Some of these grounds are incomprehensible even after allowing for typographical errors. Some grounds appeared to have been copied from other applications which have no bearing to the facts of this case. In the absence of particulars, it is impossible for the Court to deal with them otherwise than to bear them in mind in its overall scrutiny of the Board’s Decision for errors of law, procedural unfairness and irrationality in the Decision.

Overall scrutiny

8.  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 applicable to non-refoulement protection under the USM; the burden of proof and standard of proof, correctly identified the issues and observed a very high standard of fairness.

9.  The Board analysed the evidence carefully and tested it against common sense, inherent probability and the COI. It identified numerous substantial inconsistencies between the Applicant’s written evidence and his testimony before the Board. He gave different accounts of the events leading to his leaving Pakistan. The documents he produced do not appear to be credible. More importantly, they are inconsistent with any version of his account of events. There is nothing to suggest that the Board had not adopted a holistic approach in assessing his credibility. The Board found him incredible and rejected his evidence. As the Applicant bears the burden of proving his entitlement to protection, this finding must necessarily mean he has failed to prove the factual basis to support his claim to non-refoulement protection under any of the applicable grounds under the USM. The Board gave full reasons for rejecting his evidence. Eighteen out of its thirty-two pages of the Decision were about analysis of the evidence. It could hardly be argued that the Board did not give reasons or adequate reasons for its finding of fact or credibility of the Applicant or for dismissing his appeal.

10.  Applying the law applicable to non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

11.  For the above reasons, the Applicant’s leave application 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