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HCAL 1139/2021
[2023] HKCFI 3198
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1139 of 2021
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BETWEEN
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Waheed Raza |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To:
1. Stay under Section 15 and Regulation 7A of Legal Aid Ordinance uplifted; 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 13 August 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-refoulement Claims Petition Office (the “Board”) dated 19 July 2021 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 21 December 2020 (the “Notice”).
2. The Applicant is a Pakistani national. He entered Hong Kong on 29 April 2020 illegally and was arrested on 11 May 2020. On 13 May 2020, he made a claim for non-refoulement protection. In due course, his 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 claim was dismissed by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now applies for leave to apply for judicial review of that Decision.
Legal aid application
3. This leave application was scheduled to be heard on 27 November 2023. The Applicant is currently detained under the Immigration Ordinance pending removal from Hong Kong subject to the determination of the present leave application. He had also applied for a writ of habeas corpus in HCAL 1880/2023, which was listed for hearing on 4 December 2023.
4. He applied for legal aid on 20 October 2023. In the normal course, his leave application will be stayed for six weeks until 1 December 2023, unless the court directs otherwise. Having considered the nature of the leave application and issues raised, the Decision, the papers, and all the circumstances of his leave application, the Court reached a strong provisional view that the intended judicial review has no prospect of success. The Applicant did not apply for legal aid when he filed his leave application, but waited for more than two years until he was held in immigration detention pending refoulement. While this is not a reason for lifting the stay, his conduct bears the hallmark of an abuse of legal proceedings, being an attempt to delay his refoulement process. Thus notwithstanding Section 15 and Regulation 7A of the Legal Aid Ordinance, the Court considered it expedient to lift the stay, proceed with the hearing of his leave application and reserve for decision until after 1 December so that he practically has the benefit of the full six weeks’ stay of proceedings. And as a safeguard to his right to apply for legal aid, if he can disclose any arguable grounds of judicial review, this Court shall defer its decision pending the outcome of his legal aid application. If legal aid is granted, the Court shall hear further arguments from his legal representative. Otherwise, the Court will issue its decision after 1 December 2023. As at the date of issue of this Form CALL-1, his legal aid application has not been determined. For reasons as explained below, the Applicant failed to disclose any arguable grounds for judicial review.
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 (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claimed that, if refouled, he would be harmed or killed by Rana Hayat (“RH”), who is a powerful politician associated with Pakistan Muslim League (Nawaz) (PML(N)), because RH wanted to take his land.
6. The Applicant, now aged 30, was born in Punjab Province, Pakistan. He received 12 years of education and has worked as a farmer from 2010 to 2018.
7. His father divided a plot of land into three plots and gave one plot to each of his sons, including the Applicant. In his NCF, the Applicant claimed that his father had recorded the transfer on a legal document. The plot received by the Applicant (the “Land”) was approximately one acre in size. It was a plot of farmland but had potential to benefit from a nearby housing development and may be classified as residential land.
8. In the winter of 2018, four of RH’s men visited the Applicant. They said they had been sent by RH with a message that he should transfer the Land to RH. The Applicant refused. The men said he should think about it and left after about an hour. The Applicant considered that they were threatening him.
9. In early 2019, the same individuals came and repeated their demanded. When he refusal, they abused him and beat him unconscious. He did not report to the police as he did not have any major injury.
10. Approximately two months later, six of RH’s men arrived on the Land. One of them carried a gun. After threatening to kill the Applicant if he did not transfer the Land to RH, they beat him with sticks. The Applicant was hospitalised for two days as a result. He reported the incident to the police. He returned to the police station a few days later and found that the police had not taken any action. The officer told him that he was wasting his time and requested a bribe of 200,000 Rupees. He did not pay.
11. Out of fear, the Applicant fled to Islamabad. After staying there for five to six months, he was located by three or four of RH's men. They demanded he sign some documents for transferring the Land. One of them wielded a gun. When he refused, the other men assaulted him for about five minutes. He managed to narrowly escape when the people with whom he was living intervened.
12. The Applicant then moved to the Green Town Area of Lahore. On the advice and help of his friend, he flew to Beijing on 23 December 2019 and then sneaked into Hong Kong.
13. The Applicant believed that RH had already occupied his land. RH did not harass his brothers. He believed that was because he was the only one who held a plot of land near the housing development. He did not believe relocation within Pakistan feasible due to RH’s extensive connections. He did not believe the police could protect him because the police often solicited bribes and had shown a reluctance to act against powerful figures.
The finding of the Board
14. On 23 April 2021, the Board directed the Applicant to produce documentary evidence of his ownership of the Land. It advised the Applicant that such evidence could be obtained online or by visiting the Punjab Land Records Authority (“PLRA”) in-person through one of his family members in Pakistan.
15. On 21 May 2021, the Applicant responded that he had taken reasonable steps to obtain documentary evidence but in vain. He said his father had been to PLRA for that purpose but was informed that because of COVID-19, PLRA would only respond to requests for very urgent services. He therefore did not expect he could provide documentary evidence at the hearing.
16. The Applicant was legally represented at the hearing on 3 June 2021. He testified before the Board. He confirmed that the only problem facing him in Pakistan is RH. He said he could not provide evidence of his ownership because of the COVID restriction in Pakistan. The Board indicated that it had checked the PLRA website and found no indication that only a limited service was available. It indicated that it had entered the website on the morning of the hearing and managed to make an online appointment for the Applicant on the following Monday morning to obtain a fard, which is a document that shows ownership of land. It gave the Applicant 21 more days after the hearing to obtain the evidence of his ownership.
17. On 18 June 2021, the Applicant wrote to the Board stating that he had taken reasonable steps to obtain the evidence. He claimed that his father visited the PLRA twice but only to be told that the PLRA would only respond to very urgent requests. He said he had tried to access the PLRA website but could not obtain evidence of title on line.
18. The Board accepted to a degree that the Applicant might not be able to obtain evidence of title online as it has no direct experience before. However it noted that the PLRA website is impressive and indicates that information can be obtained through an online App, where “landowners can view the specific land records, registries data, tax calculator, fee schedule” and it appears that there is 24/7[5] online fard facility in addition to other services. There was no indication on the PLRA website that the in-person service of the PLRA was being limited. It did not accept that the Applicant whether by himself or through his father had any real difficulty in obtaining the title document to prove his ownership. It found proof of ownership was “relatively simple [and] achievable” for the Applicant and his inability to provide any documentary evidence suggested that he was not in fact the owner of the Land. It considered his evidence unreliable and incredible. His excuses for not providing evidence do not stand up to scrutiny. The Board found there is no evidence that he is the owner of the Land on which his feared risks rested. Hence, it concluded that there is no evidence of any risk to the Applicant upon his return. His claim for protection failed.
19. The Board went on to consider the viability of internal relocation in the event that the Applicant’s evidence were accepted to be true and his risk is genuine. The Board noted that RH would not gain anything from killing the Applicant because ownership of the Land would be passed to his family members on his death. According to authoritative and credible country of origin information, the purposes of a land grabber would be achieved if the land owner is dispossessed of his land. Further, RH had no personal grudge against the Applicant and only harmed him to obtain the title to the Land. It therefore would serve no purpose for RH to expend a large amount of resources to locate the Applicant if he were relocated to other parts of Pakistan. The Board held that the Applicant could safely relocate to the Sindh province which had over 20 cities, including Karachi. The PML(N) had not won any seat in Sindh and RH would not be able to use his connection with PML(N) to locate him.
20. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds under the USM and dismissed his appeal against the Director’s Notice.
The legal principles applicable to judicial review
21. 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[6].
Grounds for judicial review
22. The Applicant did not put forward any grounds of application for judicial review in his Form 86. After having been explained the above legal principles, he confirmed that he had no complaint about errors of law, procedural unfairness or irrationality in the Decision. He only wished the Court to carefully consider his claim. 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.
Discussion
23. Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds for application 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 quoted relevant precedents in support of its decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues involved in the claims. The Applicant’s claim is founded on his fear of being harmed or killed by a powerful land grabber for refusing to transfer his land to the land grabber.
24. The Decision of the Board is based on its finding of the Applicant’s credibility and assessment of his risk of harm. The Applicant’s claim is founded on his ownership of the Land. The Board had thoroughly and carefully researched on matters relating to land grabbing in Pakistan by referring to authoritative and credible country of origin information (“COI”). It had entered the PLRA website and even successfully made an appointment a few days after the hearing so that the Applicant’s father may attend the PLRA to obtain evidence of the Applicant’s ownership of the Land in question. It gave the Applicant helpful assistance in proving his ownership of Land which is the very basis on which his claim of harm and risk is founded. Despite repeated opportunities had been given to the Applicant, his response was that such evidence was unobtainable because of COVID-19 and PLRA’s policy of only providing services to very urgent requests. The Board considered his excuses could not stand up to scrutiny and hence he had failed to prove that he is the owner of the Land on which his feared risks arose. There is, therefore, no evidence of any risk to the Applicant upon his return to Pakistan. As the Applicant bears the burden of proof of his claims, such a finding is fatal.
25. The Board did not stop there. It also assessed his claim on the basis of the case as he asserted. Even on his evidence, it found there was no factual basis to support his claim of fear. The land grabber had achieved his purpose dispossessing the Applicant of his Land. It would serve no purpose to locate and kill him in view of the costs and risk to prosecution. Thus, the Applicant’s risk of harm, if refouled, is low. It was also on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds. His fear of harm and risk is not well-founded.
26. Basically, the Applicant was not credible and failed to discharge his burden of proving his fears and risks. The primary basis of the Board’s Decision is that the Applicant had failed to prove the facts in support of his claim. The further and alternative basis is that even on the basis of the case as he asserted, as a matter of law he is not entitled to protection under the USM. Insofar as these are finding of facts, they 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. Insofar as these are finding of the law, the Board is absolutely correct. The Decision is utterly without fault. There are no errors of law or procedural unfairness in its Decision. The Board observed a very high standard of fairness. Its Decision does satisfy the enhanced Wednesbury test. Having considered his grounds for application, the Court was satisfied that the Applicant has failed to advance any arguable grounds of review, let alone one with realistic prospect of success.
Conclusion
27. For the above reasons, the stay under Section 15 and Regulation 7A of the Legal Aid Ordinance is uplifted and the Applicant’s application for leave to apply for judicial review is refused.
Dated 7th day of December 2023.
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(Allen Lee)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 7/12/2023
Waheed Raza
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 7/12/2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17500/20/12/59/P3408
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 725/20 (Formerly RBCZ 10634/20)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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] Seven days per week round the clock online service
[6] [2018] HKCA 524 at [14(1)]
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