ALI KHAN SAJID alias SAJID ALI KHAN alias RASHID ALI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1463/2022

[2023] HKCFI 675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1463 of 2022

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;

1.  Leave to amend the Form 86 by naming the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) as the proposed respondent and the Director of Immigration as the interested party granted;

2.  Extension of time for the Applicant to apply for leave to apply for Judicial Review of the Board’s Decision dated 29 August 2022 granted; and

3.  The application for leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 9 December 2022 for leave to apply for judicial review (the “leave application”). He named the Director of Immigration (the “Director”) and the adjudicator of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) as the proposed respondents; and their decisions in the Notice of Decision dated 12 May 2020 (the “2020 Notice”) and Decision dated 29 August 2022 (the “2022 Decision”) respectively as the decisions in respect of which relief is sought. A copy of the Board’s Decision was annexed to his affirmation filed in support of the leave application.

2.  While the 2022 Decision of the Board is reviewable by judicial process, the decision of the Director in the 2020 Notice is not as there are established statutory procedures of appeal to the Board under section 37ZR of the Immigration Ordinance, Cap. 115 and the Applicant has invoked those procedures. The decision of the Director in the 2020 Notice was superseded by the Board’s 2022 Decision. It is no longer susceptible to judicial review: Re Moshsin Ali[1]. In the circumstances, the only proper leave application the Applicant could make is one for leave to apply for judicial review of the Board’s 2022 Decision dismissing his appeal against the decision of the Director in his 2020 Notice. Accordingly, leave was granted to amend the Form 86 by making the Board the sole intended respondent, the Director the intended interested party, and the Board’s 2022 Decision the decision in respect of which relief is sought.

3.  Under section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review may be made within three months of the date of the decision sought to be reviewed. The leave application was made 10 days out of time. In his supporting affirmation, he explained that he did not receive the Order and Form CALL-1. The Applicant was in prison custody at the time he made the leave application. The delay is not substantial. Giving him the benefit of doubt created by his being held in custody, this Court accepts his explanation for the delay and grants him extension of time to file the leave application.

Application for adjournment

4.  At the Applicant’s request, an oral hearing on 21 February 2023 was scheduled for hearing this leave application. By his letter dated 3 February 2023, the Applicant applied for the hearing to be adjourned to await the outcome of his legal aid application. The Court directed that the application for adjournment be determined at the oral hearing.

5.  At the oral hearing, the Applicant produced his Legal Aid Application card indicating that he made the legal aid application on 7 February 2023 after he wrote in to apply for the adjournment. His explanation for the delay in making the application on the grounds that he is uneducated, illiterate in English or Chinese, did not know the law and procedure and had to rely on his friend to assist him in making the application as he is in custody.

6.  The Applicant has been living in Hong Kong for more than 20 years and had been legally represented in his non-refoulement claim before the Director. He should have a good knowledge about availability of legal aid and how to go about his affairs in Hong Kong. He should also have established good contacts with his ethnic community to assist him in making his legal aid application even though he is in custody at the time the Decision was issued. He wasted no time in applying leave to apply for judicial review on 9 December 2022. He responded within three days to the Court’s letter dated 18 January 2023 asking him if he wished to have an oral hearing. He ought to know that an oral hearing will soon be held. Yet he did not take any steps to apply for legal aid up to that stage. It was only when the notice of hearing dated 1 February 2023 was issued that he wrote on 3 February 2023 requesting an adjournment to await the outcome of his legal aid application. But as at the date of his letter, he had not yet made the legal aid application. His application for adjournment carries the hallmark of an intention to de-rail the hearing.

7.  The Applicant argued that an adjournment was needed to enable him to produce some documents. He did not give any particulars what those documents are. He had started his non-refoulement claim as early as 2008. It lies ill in his mouth that fifteen years since he has not obtained all the documents in support of his claim. When pressed for particulars of the documents he wished to produce, he said they were in Kowloon Bay Immigration Centre, which he later confirmed are the documents in the hearing bundle before the Board. Those documents are before the Court. He also said he had a letter from his mother informing him about the situation in Pakistan. That letter had been considered by the Board.

8.  The Court is not satisfied that there is any good reason for an adjournment. Notwithstanding section 15 of the Legal Aid Ordinance, the Court ordered the hearing to proceed. If the Applicant could demonstrate an arguable ground for judicial review, which is a lower standard than good prospect of success, the Court shall adjourn the hearing to await the outcome of the Applicant’s legal aid application before making a determination.

Background

9.  The Applicant is a Pakistani national, now aged 51. He had previously entered Hong Kong as a visitor on 23 June 2002 and overstayed. He was arrested by the police on 21 July 2003 and convicted of the offences of theft, using and possessing a forged Hong Kong identity card and illegally remaining in Hong Kong. He was convicted and sentenced to 8 months’ imprisonment. He was subsequently repatriated to Pakistan on 2 January 2004.

10.  The Applicant re-entered Hong Kong illegally and was arrested on 26 May 2008. He was sentenced to 18 months’ imprisonment for illegally remaining in Hong Kong and breach of his previous deportation order. While in prison custody, he raised a torture claim on 4 June 2008 under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT Claim”). That CAT Claim was dismissed by the Director’s notice of decision dated 22 February 2013 (the “2013 Notice”). On his appeal, the Board found he “has very serious problems indeed regarding credibility” in his CAT claim and dismissed his appeal against the 2013 Notice on 9 April 2013 (the “2013 Decision”). He did not further pursue his CAT Claim. The 2013 Decision became final.

11.  Following the implementation of the Unified Screening Mechanism (“USM”), the Applicant lodged a non-refoulement claim by written representation on 27 September 2013. His claim was assessed under all grounds available under the USM other than under the Torture Risk ground which had been dismissed in his CAT Claim, namely Persecution Risk ground[2]; BOR 3 Risk ground[3]; and BOR 2 Risk ground[4]. By the 2020 Notice, the Director rejected his claim. The Applicant appealed. His appeal was dismissed by the Board’s 2022 Decision. He now seeks leave to apply for judicial review of that Decision.

The Applicant’s case

12.  The following account of the Applicant’s case is mainly based on the information in a further Torture Claim Form (“TCF”), Supplement Claim Form (“SCF”) prepared with legal assistance from the Duty Lawyer service and the record of his two screening interviews in 2013 and 2020 made in the presence of his lawyer. The Duty Lawyer assigned to assist the Applicant has informed the Director that the Applicant would not be relying on any of his previous records, ie the initial TCF prepared by him without legal assistance. In gist, his ground for protection is that, if returned to Pakistan, he will be harmed or killed by the head of his village, Haqdad Khan who was a member of the Pakistani Muslim League (“PML”) because he was a supporter of a rival political party and a false charge of murder had been made against him at the instigation of Haqdad Khan.

13.  The Applicant was born in District Attock, Province Punjab, Pakistan. He has received four years of formal education up to primary four and has about three to four years of experience operating a shop of selling video discs. He is single and has one brother and two sisters.

14.  He claimed that his father was an active party member of the Pakistani People’s Party (“PPP”) and was twice elected as the administrator for the District. The Applicant was a supporter of the PPP and continued to support the PPP after his father had passed away. He persuaded his friends to vote for the PPP. He alleged that PML members, in particular the village head Haqdad Khan, were infuriated by his support of the PPP. He believed Haqdad Khan was powerful, influential and had a close relationship with the police.

15.  One day in late 2007, a mutilated dead body was found on the Applicant’s family land. The Applicant did not know the victim and did not witness the incident because at the material time he was working in his shop a mile away. However, the police began investigating him for the murder. The Applicant produced a Primary Information Report which identified the victim as Hamad Khan and confirmed that the incident took place on 13 September 2007. He believed Haqdad Khan and other PML members had targeted him and accused him of the murder because of his active involvement in the PPP. He believed Haqdad Khan wanted to eliminate him and hence prompted the victim’s brother to accuse him of the murder.

16.  At the request of the police, the Applicant went to the police station with his brother to assist in the investigation. When it was apparent that the police had no intention of letting him go, the Applicant escaped and jumped onto a taxi. He went to stay at his friends’ home for the next two to three days. He was told by his brother’s friend, who was working in the police station, that the police were attempting to frame him for the murder. Thus, he fled to Mainland China and then sneaked into Hong Kong.

17.  The Applicant also claimed that towards the end of May 2013 he was attacked by a group of ten Pakistani in Hong Kong and suffered multiple injuries including a cut on his left chin. As he had no dispute with anyone in Hong Kong, he believed his assailants were sent by Haqdad Khan.

The finding of the Board

18.  The Applicant’s appeal against the 2020 Notice was heard by a differently constituted Board. He testified before the Board. The Board found his evidence was neither “reliable, credible nor believable”. Hs evidence was significantly exaggerated and based on hearsay of vague origin. In particular, the Board found significant discrepancies between his case in the CAT Claim, SCF, recorded interviews and his testimony before the Board. The Board noted a change of thrust in his claim. Formerly, the Applicant said that the person behind his fear of harm is the village head Haqdad Khan. But before the Board, he said it is his personal enemy Sanober. He attributed the inconsistencies to failure in his memory due to the prolonged lapse of time. That explanation was rejected by the Board because it held that he could not have forgotten such key parts of his story, had he really lived through those events.

19.  There were serious inconsistencies in the Applicant’s evidence about his political involvement. In his TCF, he claimed he had discussions with people involved with the PPP and persuaded others to join the PPP. But in his testimony before the Board, he said he was never interested in politics, he only voted for the PPP and occasionally joined in their celebration. More importantly, he said that his brother ran for an election in the PPP in their home village. Given his relatively minor involvement, the Applicant’s brother would have been a more likely political target than the Applicant. This testimony undermined the credibility of the Applicant’s case of being targeted by PML because of his limited participation as a supporter of PPP.

20.  In relation to the murder charge, the Applicant stated that the dead body was found near his family’s house about 60 to 70 steps away. When asked why his siblings were not suspected, the Applicant said that was presumably because being the youngest in the family, he was the “most free” and the most active person, and therefore the likely suspect. This is inconsistent with his previous evidence that the body was found not close to his family home and, more importantly, with the change of his case as to the identity of the person behind the false murder charge against him.

21.  The Applicant’s testimony that he had never met the police in person flatly contradicted his unequivocal evidence before the Immigration Department that he went to the police station with his brother to assist in the investigation about the dead body found on their family land and that he escaped when he realised he was not going to be released. Even more importantly, he gave a different reason for being targeted for murder ie he was targeted by Sanober because of some grudges between him and Sanober’s son. This reason is highly inconsistent with his previous case that he was targeted by Haqdad Khan for supporting the PPP, which is not a small detail in a complex story that could have been forgotten. His identification of Sanober rather than Haqdad Khan as the person behind the false murder charge seriously undermined the truthfulness of his case.

22.  The Board found that the Applicant incredible and rejected his evidence. It found that he had failed to establish the factual basis to support his claims under any of the three remaining applicable risks under the USM. Hence, the Board dismissed his appeal against the 2020 Notice.

The legal principles applicable to judicial review

23.  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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

24.  At the hearing, after explaining the above principles to him, the Applicant confirmed that he had no complaints about error of law, procedural unfairness or irrationality in the Decision. This is inconsistent with the grounds of application advanced in his supporting affirmation which he said was prepared by his friend on the basis of what he told his friend. The high standard of fairness would require the Court to consider those grounds and examine the Decision rigorously for errors of law, procedural unfairness and irrationality in the Board’s Decision.

25.  The Applicant had advanced the following four grounds of application in his supporting affirmation:

(1)  He believes that the Director and the Board reached their decisions wrongly, the decisions were not reasonable and unfair; and he believes the Board failed to give him sufficient time and chance to arrange the relevant evidence for his non-refoulement claim and appeal;

(2)  The Director failed to give proper weight to the presence of state acquiescence; the Applicant was tortured at the behest and the state law enforcement agencies as well as those in the high ups of political circles;

(3)  The Director failed to take such argument into account or failed to give enough weight to such argument before reaching the Decision; and

(4)  This is a clean case of unfair attitude shown by the Director; the corruption and incompetency of the administration in his country is still a very serious problem.

26.  The decision of the Director in the 2020 Notice is not reviewable by judicial process and has been superseded by the 2022 Decision of the Board. For the benefit of the Applicant, the Court assumed that the complaints against the Director are also directed at the Board.

Ground (1) – The 2022 Decision is unfair and unreasonable

27.  The thrust of this ground of application is procedural unfairness in that the Applicant was not given sufficient time to arrange the relevant evidence. He did not give any particulars. His case was mainly founded on the false charge of murder made against him in 2007. He had produced the Primary Information Report. He had put forward his case in his TCF, SCF and the two record of interviews. He mentioned no other documents needed to be produced. He made no complaint in his Notice of Appeal about insufficient time to arrange his evidence. He had all the time he needed between 2007 when he fled to Hong Kong until 2020 when he last appeared before the Board to arrange his evidence. He gave no particulars about the evidence in respect of which he needed more time to collate. It lies ill in his mouth to complain about unfairness and insufficient time to arrange evidence. His complaint is a mere allegation unsupported by any evidence.

Ground (2) – The Board failed to give proper weight to evidence about state acquiescence

28.  The Applicant’s case is about threats from Haqdad Khan and a false charge of murder instigated by Haqdad Khan or Sanober. He advanced no evidence of torture or torture at the behest of state official. He explained that was because he escaped the torture by fleeing to Hong Kong and that had he not fled he would have been tortured or killed. That is no answer to the absence of evidence of state involvement or state acquiescence relating to the threat or false charge of murder. There is no evidence that Haqdad Khan or Sanober were state officials or persons able to wield the authority of the government and/or the state. This ground is a familiar template ground but has no relevance to the facts of this case.

Ground (3) – The Board failed to take such argument into account

29.  The Applicant gave no particulars of the “such argument” he relied on in this ground. At the hearing, he was unable to elaborate.

Ground (4) – The Board’s unfair attitude

30.  The Applicant gave no particulars or evidence of the unfair attitude complained of. It is just a mere allegation. At the hearing, he was unable to elaborate. He actually agreed there was no unfairness.

Discussion and conclusion

31.  In the absence of specific grounds of application or grounds with sufficient particulars, 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. 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; and observed a very high standard of fairness. The Board found the Applicant not credible on the crucial issues of his risk of harm upon his return to Pakistan. Basically, he failed to discharge his burden of proving his fears and risks. It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the three remaining applicable grounds under the USM. This is a finding of fact solely 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 detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

32.  Though extension of time was granted for the Applicant to file his leave application, his grounds of application are not arguable. His intended application for judicial review has no realistic prospect of success. For these reasons, the application for 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