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

HCAL 1964/2018

[2021] HKCFI 1452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1964 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;

1.   Leave be granted to amend the Notice of application for leave to apply for Judicial Review; and

2.   Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s second application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”).  He was granted leave under his first application and successfully reviewed the decision of the Board[1]. That led to a rehearing and a second decision of the Board dated 6 September 2018, in respect of which the Applicant now seeks leave to apply for judicial review.

2.  The Applicant is a Pakistan national born on 4 January 1987 and is now aged 34.  He has three brothers and two sisters, two of them are living in England.  He received four years’ primary education.  He worked as a labourer and then an apprentice welder before coming to Hong Kong in 2009.  He was aged 22 when he first arrived Hong Kong. 

3.  The Applicant left Pakistan on 7 October 2009 allegedly out of fear for his safety.  He arrived China on and stayed there until 21 October 2009 when he sneaked into Hong Kong via Shenzhen by boat.  He was arrested by the police on the same day.  On 23 October 2009, he lodged his claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).

4.  His claim was considered by the Immigration Department.  By a Notice of Decision dated 23 April 2015 (the “2015 Notice”), the Director of Immigration (the “Director”) rejected his claim.  On 11 May 2015, he lodged an appeal to the Board against the decision of the Director in the 2015 Notice.   That was four days after the expiry of the 14 days’ limit to appeal.  On 27 July 2015, the Board (by one of its Deputy Chairperson) dismissed his application for leave to appeal/petition out of time (the “2015 Decision”).  As mentioned above, the Applicant sought and obtained leave to apply for judicial review against the Board’s 2015 Decision and on 9 June 2017, he obtained an order of certiorari quashing the 2015 Decision. 

5.  In 2015, there were only three applicable grounds for non-refoulement protection under the Unified Screening Mechanism (“USM”), namely, Torture Risk[2]; BOR 3 Risk[3]; and Persecution Risk[4] grounds.  The Applicant’s claim was assessed on those three grounds under the Director’s 2015 Notice.  When the fourth ground, ie BOR 2 Risk[5]  ground became available under the USM after the 2015 Decision was quashed, the Director invited the Applicant by letter dated 20 January 2017 to make submission in respect of the fourth ground.  The Applicant did not respond.  Having further considered the Applicant’s claim under the additional ground based on the information hitherto submitted by the Applicant, the Director issued a Notice of Further Decision dated 15 February 2017 and rejected his claim under this additional ground (the “2017 Notice”).   Thus, by 15 February 2017, the Applicant’s claim for non-refoulement protection had been considered under all applicable grounds under the USM by the Director.

6.  The Board’s 2015 Decision having been quashed, the Applicant’s appeals against the Director’s decisions in the 2015 Notice and 2017 Notice were heard in an oral hearing before another adjudicator of the Board on 14 February 2018.  All four applicable grounds were considered by the Board.  On 6 September 2018, the Board dismissed his appeals against the Director’s 2015 Notice and 2017 Notice (the “2018 Decision”).

7.  On 18 September 2018, he applied a second time for leave to apply for judicial review against the Board’s 2018 Decision.  In his Notice of application for leave to apply for judicial review (Form 86), he named the Immigration Department as the proposed respondent and sought relief against its judgment, order, or decision dated 6 September 2018.  The Director never made any decision in any notice dated 6 September 2018 in respect of the Applicant.  Thus, I assume the Applicant’s intention was to seek judicial review of the 2018 Decision of the Board.  Accordingly, I granted leave to amend his application by replacing the Director by the Board as the intended respondent.

The Applicant’s case

8.  In essence, the Applicant’s case is that he was a member and supporter of the Pakistan Muslim League-Quaid-I Azam (“PML-Q”) political party for which he is at risk of being killed by a rival political party, Pakistan Muslim League-Nawaz (“PML-N”) for refusing to switch allegiance to PML-N.  As was observed by the Board, the Applicant gave different versions of facts in his non-refoulement claim form and in his evidence at the hearing. 

9.  According his non-refoulement claim form, his paternal uncle was a member of PML-Q and twice the Vice-Administrator of his village.  He became a supporter of PML-Q in 2007 and participated in the election campaign for the post of Nazim[6] in February 2008.  The PML-N candidate won the election.  Since then, PML-N members started to target PML-Q supporters by lodging false cases against them.  Within less than two months, the Applicant was arrested three times for robbery, abduction, and selling drugs and alcohol.  He was told by a police officer called Waheed that the police had been bribed by PML-N members to harass supporters of PML-Q. Then, his uncle suggested to the Applicant to leave Pakistan and paid for his trip.

The finding of the Board

10.  At the hearing, the Applicant forgot most of what he had stated in the non-refoulement claim form. He could not be sure whether his uncle belonged to PML-Q or PML-N.  That is the basic building block of his case of fear and risk.  He could not be sure when the election took place.  He could only remember two false accusations or arrests, not three.  The Adjudicator identified numerous discrepancies between his evidence in the non-refoulement claim form and his oral testimony at the hearing regarding the 2008 election and his arrests.  The Board considered his demeanour and evidence at the oral hearing cast serious doubt on his credibility.

11.  The Board found it inherently incredible that members of PML-N would go to the trouble and expenses of bribing the police, not once, but twice or even thrice, to target an unimportant supporter like the Applicant who only put up posters and banners for his uncle.

12.  Most importantly, the Country of Origin Information (“COI”) showed that there was no Union Council election in 2008 or 2009.  The last one was held in 2015 and the previous one was held in 2005. 

13.  In conclusion, the Board was left in no doubt that the account given by the Applicant in the non-refoulement claim form was a concoction.  By the time of the hearing, the Applicant had forgotten most of that story which explained why his evidence before the Board deviated from the non-refoulement claim forma and record of interview in so many respects.  The Board found his account inherently implausible and inconsistent with the objective COI.  The Board rejected his account completely and found that the Applicant has fallen far short of proving the primary facts on a balance of probability.  The Board further found that even on the Applicant’s own account, he has not proved any real risk that he would be subjected to any of the proscribed ill-treatment upon his return to India.  Accordingly, the Board dismissed his appeal and affirmed the decision of the Director in the 2015 Notice and 2017 Notice.

The applicable legal principles     

14.  The role of the court in judicial review is not to re-assess the non-refoulement claim 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 scrutinise 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[7].

Grounds for judicial review

15.  On 10 July 2020, the Applicant lodged a three-page written submission advancing six grounds for his application.  The main thrust of his grounds is procedural unfairness. 

16.  Under Ground (1)(A), he accused the Board of having unlawfully fettered its discretion by refusing his appeal on the grounds that he did not satisfy the requirement for non-refoulement protection.  This cannot be a valid ground for application for leave.  If he did not satisfy the requirement for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the two notices and dismiss his appeal. The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness, unreasonableness or irrationality in its Decision.  The Court returned to this ground after setting out all his grounds of application.

17.  Under Ground (1)(B), the Applicant accused the Adjudicator, ie the Board, of having acted in a procedurally unfair manner in dealing with his appeal.  He did not give any particulars.  The Court had rigorously examined the 2018 Decision with anxious scrutiny.  The Court was satisfied that the Adjudicator committed no errors of law or did anything which could be regarded as procedurally unfair or made any decision which was Wednesbury unreasonable or irrational.  The Adjudicator set out the law clearly.  She reminded herself that while the Applicant bears the burden of proof of his claim, that burden is subject to the high standards of fairness required in these proceedings.  She correctly adopted the civil standard of proof.  In assessing the evidence, she reminded herself that a claimant may have fled from his home country with few belongings and documents and has difficulties in proving his case.  The Court was unable to find a scintilla of evidence suggesting the Adjudicator acted in a procedurally unfair manner.

18.  Under Ground (1)(C), the Applicant argued that the 2018 Decision was unreasonable or irrational in the public law sense or are a result of procedural errors or unfair. Again, he gave no particulars.  The complaint of procedural unfairness was covered in Ground (1)(B) and rejected by the Court. The Court returned to the other allegations of error and unreasonableness below.

19.  Under Ground (1)(D), the Applicant accused the Board of failing to meet the greater care and duty owed to a self-represented claimant.  Again, he did not particularize the alleged failing of the Board.  In the opinion of the Court, on the face, the Board had fully considered the Applicant’s case; and he suffered no disadvantage for not being legally represented.

20.  His Ground (2) is not a ground but a statement of fact that he filed appeal against the Director.

21.  Under Ground (3), he said that the majority of the documents in the appeal bundle were in English and he “strongly believe that there was insufficient time for [him] to prepare for the hearing especially due to [his] limited skills in English and being unrepresented…”  The Notices were issued by the Director in April 2015 and February 2017.  The hearing of the Board was held on 14 February 2018.  In between, he had obtained legal aid from the Director of Legal Aid to process his judicial review of the Board’s 2015 Decision, albeit relating only to the Board’s refusal to grant him extension of time to appeal.  It lies ill in his mouth to say that for all these years he did not have sufficient time to arrange for interpretation and to prepare for his appeal.  Besides, the appeal bundle is basically made up of his non-refoulement claim form filled in by him with the assistance of a lawyer and an interpreter; the record of his screening interview which he attended with the assistance of a lawyer and an interpreter; and the COI.  He knows what is contained in his non-refoulement claim form and in the record of screening interview.  The COI are, unfortunately, not in Punjabi.  He cannot expect these documents to be fully translated to him.  He has to find resources himself from among his friends.  Besides, he can write good English or has access to language assistance as reflected in his three-page submission.   After all, the COI are information about his own country issued by very credible source.  He ought to know about the information. 

22.  In Re Zafar Muazam[8], Re Zunariyah[9], Re Zahid Abbas[10], Re Tariq Farhan[11], and Re Lopchan Subash[12], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[13] nor the judgment of FB v. Director of Immigration[14] prescribes that a CAT claimant or a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  Taking a global view of the circumstances, the Applicant had the benefit of legal representation in presenting his case to the Director.  He also had the services of a qualified interpretation at the oral hearing before the Board.  Nothing amiss arose from the non-availability of legal representation before the Board or interpretation in preparing for the hearing. The Court found that the Applicant had failed to demonstrate any procedural irregularity in the proceedings before the Director and the Board, or any arguable basis to challenge the fairness of the process.

23.  Under Ground (4), the Applicant complained that due to lack of understanding on what will happen in the hearing and since the hearing bundle was not provided earlier or with interpretation, he was confused in terms of what was happening.  His complaint about lack of language assistance is covered by the preceding paragraph.  If he was genuinely confused, he should have asked for an adjournment from the Adjudicator to enable him to prepare for the hearing.  It lies ill in his mouth to attempt to overturn the result of the hearing on this ground.

24.  Ground (5) is a statement of fact which was rejected by the Board.

25.  Under Ground (6), he challenged the COI as being unofficially recognised and is hearsay or outdated and the 2018 Decision based on such information is just groundless speculation.  The COI relied on by the Director and the Board are all from credible and official sources, including Country of Origin Information Report of Pakistan issued by the United Kingdom Border Agency Home Office published on 9 August 2013; Country Reports on Human Rights Practices for 2013 – Pakistan, published by the United States Department of State on 27 February 2014; Official website of the Office of the Ombudsman Punjab; Official website of the National Accountability Bureau of Pakistan; Official portal of the City District Government Rawalpindi; and The World Factbook – Pakistan dated 20 June 2014, issued by United States Central Intelligence Agency.  Other than a bald assertion of unreliability and hearsay, the Applicant provided no particulars as to what are untrue, not to mention his failure to provide any publication contradicting these COI.  The Court considered this ground totally groundless.

26.  Returning to the overall or general complaint about irrationality and unreasonableness in the Board’s findings, these grounds of complaint are against the finding of facts by the Board.  The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, for errors of law, procedural unfairness or irrationality.  Having rigorous examined the 2018 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; and observed a very high standard of fairness. The Board’s conclusion that there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds was utterly without fault.  There were no errors of law, procedural unfairness or irrationality in its 2018 Decision.

27.  In Ground (7), the Applicant said he wanted an oral hearing for his application.  Three oral hearings had been arranged for the Applicant.  He did not turn up.  The notice of the first hearing was sent to his address in Kam Tin as stated in his Form 86.  It was subsequently returned to the Registry with a remark of “incomplete address/no such address”.  The Registry established telephone contact with the Applicant and was informed of his up-to-date address in Yuen Long.  The notice of the second and third hearings were sent to his updated address in Yuen Long with a reminder that the application will be determined on paper if he did not turn up.  Despite that, the Applicant defaulted on both occasions.  Under the circumstances, the Court considered it appropriate to determine the application on paper according to the papers already presented to the Court.

28.  In Ground (8), the Applicant said his first language is Punjabi.  This is only a statement of fact.  The issue of language assistance has been deal with under Ground (3) above.

Conclusion

29.  Having fully considered the papers, the Court came to the conclusion that there is nothing that shows there was any error of law, procedural unfairness, unreasonableness or irrationality in the 2018 Decision of the Board.  The Court found that the Board had adhered to a high standard of fairness.  The Board’s 2018 Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational.  The Applicant’s claim is not reasonably arguable.  There is no realistic prospect of success.  Accordingly, the Court granted leave to amend the application but refused the amended application for leave to apply for judicial review.

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]  HCAL 209/2015

[2]  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

[3]  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”)

[4]  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

[5]  risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[6]  Head of the Union Council of villages

[7]  [2018] HKCA 524 at para 14(1)

[8]  CACV 2/2018 (unreported), 23 March 2018

[9]  [2018] HKCA 14

[10]  [2018] HKCA 15

[11]  [2018] HKCA 17

[12]  [2018] HKCA 37

[13]  (2004) 7 HKCFAR 187

[14]  HCAL 51 of 2007 (unreported), 5 December 2008