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

HCAL 15/2019

[2023] HKCFI 1206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 15 of 2019

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 notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 3 January 2019 for leave to apply for judicial review.  In the Form 86, a decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 12 March 2018 is identified as the decision in respect of which relief is sought, but no administrative body is named as the proposed respondent or the interested party.  In his supporting affirmation, he annexed a copy of the Board’s decision dated 31 December 2018 (the “Decision”) dismissing his appeal against the Notice of Decision of the Director of Immigration (the “Director”) dated 27 February 2018 refusing his application for non-refoulement protection (the “Notice”).  In that factual matrix, it is obvious that the Applicant’s intention is to seek judicial review of the Decision of the Board refusing his appeal against the decision of the Director in his Notice. Accordingly, leave is granted to amend the Form 86 by making the Board the proposed respondent, the Director the interested party and the Decision the decision in respect of which relief is sought.

2.  The Applicant is a Pakistani national, now aged 30. He applied for visas to visit Hong Kong on January 2015 and 11 March 2015 but his applications were refused.  Then he went to Mainland China on 16 January 2016 and from there sneaked into Hong Kong.  He surrendered to the Immigration Department on 19 January 2016 and made a non-refoulement claim by way of written signification dated 22 June 2016.

3.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the United Screening Mechanism (“USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. His claim was dismissed by the Director’s Notice.  His appeal against the Notice was dismissed by the Decision of the Board.  He now seeks 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, the record of his screening interview in the presence of his lawyer and his Notice of Appeal to the Board.  In gist, he claimed that, if returned to Pakistan, he will be killed by his uncle because of a land dispute.

5.  The Applicant has not received any formal education.  He has about 12 years of working experience, mostly as a famer in his home area.  He claimed that his paternal grandfather had bequeathed 12 acres of land equally to the Applicant’s father and uncle.  However, his uncle wanted to take over his father’s share of the land.  The Applicant claimed that as he was the one farming on his father’s share of the land, he was targeted by his uncle.

6.  The Applicant claimed that on a date which he could not remember he was pulled down from his tractor and attacked by his uncle and his uncle’s three sons.  He was pushed, kicked and punched.  His uncle used a wooden stick to strike him and threatened to kill him if he did not give up his father’s share of the land.  The attack lasted for about five to six minutes.  He suffered bruises and swellings in different parts of his body.  He treated himself with ointment and herbs.  He did not report the matter to the police as he was unable to bribe them.

7.  Or about October 2015, while he was riding his motorcycle on his way to his father’s land, he was fired at.  His motorcycle was hit.  He lost control and fell to the ground.  He saw his uncle and his friends at the direction where the shots were fired and one of them was holding a weapon.  They ran away when some bystanders came to look at what had happened. He suffered some bruises and bleeding on his knees and elbow.  He reported the attack to the police but knew nothing was going to happen because his uncle had “backing” from the Pakistan People’s party.

8.  His parents and friends told him it was not safe for him to stay in Pakistan.  He moved to Sarai Alamgir Jhelum and stayed for three to four weeks and then flew to China on 14 January 2016.  From there, he sneaked into Hong Kong.

9.  He said while in Hong Kong he maintained contact with his father and was told that no other members of his family had been hurt by his uncle.  He explained to the immigration officer that was because his father was elderly but he was targeted as he was the one creating trouble.  He said he could not relocate to other cities because his uncle could find him out.

The finding of the Board

10.  The Board had concerns about aspects of the Applicant’s claim and scheduled an oral hearing to enable him to address those concerns.  At the hearing, the Board informed him that there were inconsistencies between the evidence in his NCF and that given by him in the screening interview, that it had concerns about aspects of his claims as stated in his Notice of Appeal and the land document he produced.  The Board indicated that it wished to raise issues with him in relation to state protection and relocation in Pakistan.  It explained to him that the purpose of the hearing was to give him an opportunity to address the concerns of the Board and invited him several times to provide further evidence.  He replied that he wanted to remain in Hong Kong and he had concerns about the government in Pakistan.  He confirmed that all the evidence is contained in the hearing bundle and that he did not wish to give evidence. He insisted the Board to make a decision on his claims based on the existing materials in the hearing bundle.  Then, the Board acceded to his request and concluded the hearing.

11.  Primarily because of the concerns which were unanswered by the Applicant, the Board found the Applicant not credible.  It was not satisfied that the Applicant and his family were involved in a land dispute with his uncle, that he had been subject to harm on a number of occasions from his uncle and his uncle’s associates and that he had been subject to ongoing threats from his uncle as a result of the land dispute.  It was not satisfied as to the Applicant’s alleged fear of harm from his uncle arising from a land dispute and that he left Pakistan because of the alleged fear.  It was not satisfied that the Applicant could not relocate elsewhere in Pakistan to avoid the harm from his uncle, should he return to Pakistan.

12.  Applying the law applicable to non-refoulement protection to the facts found, the Board came to the conclusion that the Applicant is not entitled to protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the Director’s Notice.

The legal principles applicable to judicial review

13.  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

14.  The Applicant did not advance any grounds for judicial review in the Form 86.  In his supporting affirmation, he reiterated that he had problems in his home country and his life is still in danger in anywhere in Pakistan.

15.  The essence of the Applicant’s ground for review 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.  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.

Conclusion

16.  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 saw problems with the Applicants’ claim and scheduled a hearing to give him an opportunity to address the Board’s concerns.  The Board identified its concerns to the Applicant.  Despite repeated invitations, the Applicant insisted not to affirm and testify to address the Board’s concerns.  He insisted that all the materials are in the hearing bundle and requested the Board to make a decision on the basis of the materials in the hearing bundle.  The objective circumstances made it reasonably clear that the Applicant was aware of what he had to show and had already produced or mentioned all that he wanted to show. Hence, the Board acceded to his request and assessed his claim on the basis of the materials available.  It found the Applicant not credible and that he had failed to establish the factual basis in support of his claim for non-refoulement protection.  On the basis of credible country of origin information, the Board was also satisfied that the Applicant could access internal relocation to avoid the harm, if there is any upon his return to Pakistan.  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 four applicable grounds.  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 Decision was 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.

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] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[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] [2018] HKCA 524 at [14(1)]