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

HCAL 1943/2019

[2024] HKCFI 3297

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1943 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 the Applicant being absent 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 be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 10 July 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 31 May 2019 (the “Decision”) and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 16 May 2018 (the “Notice”). 

2.  The Applicant had requested an oral hearing.  His address he stated in his Form 86 was the address of an immigration facility where he was detained. He never informed the court of his change of address since his release from detention.  A hearing was scheduled and notice of hearing was sent to him by post to his address discovered from the Immigration Department on 19 July 2024.  It has not been returned through the course of mail.  He never informed the court of any change of address.  There is nothing to suggest that he had not received the notice or had moved.   However, he did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

Background

3.  The Applicant is a Pakistani national. He sneaked into Hong Kong on 10 May 2015 and surrendered to the Immigration Department on 15 May 2015.  On 12 August 2015, he made a claim for non-refoulement protection.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. His application was rejected by the Director’s Notice.  His appeal was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial of both the Board’s Decision and the Director’s Notice.

4.  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[5].  In the circumstances, the leave application as regards the decision of the Director in his Notice is refused.  The Court only considers the leave application as regards the Decision. 

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by him with legal assistance and the record of his screening interview.  In gist, the Applicant claims, if returned to Pakistan, he will be harmed or killed by his uncle because of a land dispute.

6.  The Applicant, now aged 37, was born and raised in Rawalpindi, Punjab, Pakistan. He is single.  His father and five siblings are living in Pakistan.  He had seven years’ formal education and one year’s experience working as a mason.

7.  When he was young, his father and his uncle bought a piece of land together and owned it equally.  He did not know how much they had paid for the land, but its value at the time was 4 million Pakistani rupees. His uncle is rich and powerful.  He is associated with the current ruling party, the Pakistan Muslim League (N) (“PML(N)”) and he meets the local administrator from time to time.

8.  In 2012-2013, his uncle began to ask his father for his father’s share of the land, but without making any offer to buy it.  He just kept claiming that the land belonged to him.  The Applicant’s father refused.

9.  Later, the Applicant’s brother told the Applicant that he had been attacked by their uncle and his associates with wooden sticks because of the land dispute.  He said his uncle had pointed a pistol at him and threatened that if his family insisted for a share of the land, his uncle would keep on harassing him and the Applicant would be the next target.

10.  The Applicant heard from his father that there were mediation meetings between his father and his uncle arranged by the elders in the village, but no settlement was reached.

11.  After a few days, while he was on the way home, the Applicant was stopped by his uncle and his uncle’s associates.  His uncle threatened that he and his father had to let go the land, otherwise they would beat or even kill him.  

12.  A few weeks later, his uncle called his father for a meeting to resolve the land dispute.  He went with his father to the meeting. At the meeting, his uncle took out a land transfer document and asked his father to sign it.  His father refused and insisted that he and the Applicant’s uncle had bought the land together.  His uncle then threatened that if they did not sign, they would be in great troubles.  His father was never beaten by his uncle and his uncle’s associates.  He believed that was because his father was an old man and hence his uncle targeted him and his brother instead.

13.  The Applicant does not believe the Pakistani authorities and police could protect him, as his uncle is rich, influential, and associated with the ruling party.  He does not believe internal relocation viable because his uncle could locate him throughout the country through his powerful network.  On the advice of his friend, he flew to Mainland China and then sneaked into Hong Kong to seek protection.  He last contacted his family in January 2018.  His father told him that his uncle was still demanding the land and told him not to return to Pakistan as his uncle would target him.

The finding of the Board

14.  The Applicant testified before the Board. The Board found numerous and significant inconsistencies between his testimony before the Board and his evidence in the NCF.  Hereunder are some examples.

15.  The centrepiece of the applicant’s claim is the land dispute, but he gave two different versions of ownership of the land.  The theme of the two accounts are miles apart.  The theme in the NCF is that he was a little boy when his father and uncle bought the land together and he did not know how much they had paid for the land.  The theme he put before the Board is that he was a middle age man who bought the land with his father in 2013-2014 (about five years before the hearing) at the price of 1.4 million Pakistani rupees.  He paid half of the price and owned it equally with his father.  When confronted with the inconsistencies as to who bought the land together with his father, the Applicant insisted that it was he, not his uncle.  When put to him that he could not have paid for the land as he was a little boy then according to the account in his NCF, he said it was purchased later in 2013-2014 and later his father transferred the land to him because he was the eldest son in the family.  Eventually, he stated that maybe he made a mistake and claimed that whatever was written in the paper, ie the NCF version, is correct.   He explained the inconsistency by putting the blame on the interpreter. 

16.  Other inconsistencies include whether his uncle pointed a gun at his brother when his brother was being assaulted; whether the Applicant was attacked while he was on his way home or was on the land; whether his uncle pointed a gun at him when he was attacked; and whether he attended the mediation meeting with his father, etc. 

17.  In view of the multiple significant inconsistencies in the Applicant’s evidence, the Board drew adverse inference on the Applicant’s credibility.  Because of the lack of credibility of his claims together with the complete lack of documentary evidence in support, the Board did not accept the Applicant was ever harmed or threated by his uncle or his associates.  It found he was not a witness of truth and fabricated his evidence.  It found he would not be at risk of any harm, if refouled to Pakistan.  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 non-refoulement protection under any of the applicable grounds under the USM.  It therefore dismissed his appeal.

Legal principles applicable to judicial review

18.  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[6].

Grounds for judicial review

19.  The Applicant advanced the following four grounds of application in the Form 86:

(1)  the Director’s and the Board’s decisions are unfair and unreasonable;

(2)  the Director failed to give proper weightage to the presence of state acquiescence;

(3)  the Director failed to take such argument into account or to give enough weight to such argument and COI supporting the Applicant’s case; and

(4)  the Director’s attitude was unfair

20.  These grounds are very familiar to the Court as it has seen similar or even identical grounds in other applications.  They appear to be template grounds with no particulars prepared by people assisting the applicants which usually have no bearing on the application in issue.  The Applicant gave no particulars of the unfairness, unreasonableness and the unfair attitude alleged or particulars of the argument which he complained the Board had not taken into account.  He complained about the Board failing to give proper weight to the presence of state acquiescence, but state acquiescence was not even featured in his claim.  He did not attend the hearing and forwent the opportunity to perfect his grounds.  In the absence of arguable or proper or particularized grounds of application, the Court could only focus on the usual challenges in a judicial review, ie errors of law, procedural unfairness or irrationality in its rigorous scrutiny of the Board’s decision.

Overall scrutiny

21.  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. The Board analysed the evidence properly, tested it against common sense and inherent probability and gave reasons for its finding.  It found the Applicant incredible and rejected the centerpiece of his case, ie the risk of harm arising from a land dispute with his uncle.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement 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.  For the above reasons, the Applicant’s leave application is refused. 

Conclusion

22.  For the above reasons, the 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