AFZAL MUHAMMAD AHSAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1942/2019

[2024] HKCFI 3231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1942 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  The leave to amend the Form 86 by adding the 3 grounds of application is granted;

2.  The leave application to the extent that it relates to the decision of the Director of Immigration in the Notice of Hearing is refused; and

3.  The leave application to the extent that it relates to the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office is allowed.

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 20 June 2019 (the “Decision”) and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 25 April 2017 (the “Notice”) refusing his claim for non-refoulement protection.

2.  The Applicant is a Pakistani national.  He sneaked into Hong Kong from Mainland China on 3 May 2015.  He was arrested by the police on 10 May 2016 in relation to an immigration offence and referred to the Immigration Department on 8 July 2016.  He made a non-refoulement claim on 17 June 2016.  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 seeks leave to apply for judicial review of that Decision and Notice.

3.  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  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[5].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, his leave application in respect of the Director’s decision in the Notice is refused.  The Court only considered his leave application in respect of the 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 (the “NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, the Applicant claims that he will be harmed or killed, if returned to Pakistan, by Rana Arshad (“RA”), a powerful member of the Pakistan Muslim League (Nawaz) (“PML(N)”) because of the Applicant’s refusal to support him in an election.

5.  The Applicant, now aged 38, was born in District Faisalabad, Punjab, Pakistan.  He is single.  His parents and two siblings are living in Pakistan.  He became a supporter of a rival political party, namely Muttahida Quami Movement (“MQM”) in 2010 and was appointed as the General Secretary of MQM at village level.  His duties included posting bills and spreading the word of the MQM by word of mouth.  

6.  At the material time, the PML(N) was the ruling political party.  The Applicant claimed he found himself in conflict with RA who is a powerful member of the PML(N) and a member of the Provincial Assembly.  RA is highly oppressive and violent with his political rivals and the Applicant had personally seen RA assault supporters of MQM to force them to support the PML(N).  He had good relationship with and influence over the police.

7.  During the election period in mid-2010, a group of the PML(N) supporters approached and pressurised him to quit MQM.  He refused.  After the PML(N) won the election, he received 5 to 6 phone calls threatening to frame him in a murder case and kill him if he did not support the PML(N).  He recognised RA’s brother’s voice on one of those calls.  The Applicant realised that RA wanted to take revenge on persons who had previously refused to support him.  He did not report the case to the police, as he believed the police was sided with RA.

8.  In early 2011, the police arrested and detained him three times in relation to a murder case of which he had no knowledge.  He was detained in a cell for ten days.  He was pressurised by the police to admit involvement in a murder.  He refused and was beaten with batons three times for four to five minutes each.  He was then transferred to a remand centre in Sheikupura where he was detained for three months.    He claimed RA was behind his arrest as he overhead during his detention an officer saying that he received “special treatment” because he had wronged RA.  Subsequently, he was released without charge.

9.  About six weeks later, RA’s bodyguards forcefully entered the Applicant’s house.  They were armed with sticks and machine guns. They beat him with sticks and gun butts for five to ten minutes.  He screamed for help.  They left the scene when the Applicant’s neighbours arrived.  He sustained moderate injuries.  His neighbours took him to a private hospital where he was hospitalised for 2 to 3 weeks.  

10.  After the incident, he went to stay at his friend’s home in Rawalpindi for 3 to 4 months.  He learnt from his family that RA’s associates had been to his home during that period to look for him and threatened to kill him when they located him.  

11.  He does not believe that the Pakistani authorities and police would protect him, as they would side with PML(N).  He does not believe internal relocation would be viable, as PML(N) could locate him throughout the country through their powerful network.  Hence, he fled to Mainland China in December 2011.  After staying there for almost four years, he sneaked into Hong Kong.

12.  At the screening interview, the Applicant modified part of his evidence, made some clarifications and explained some inconsistencies in his evidence in the NCF.  These modifications and explanations are noted down in Paragraph 38 of the Decision.  There are 29 items which cover slightly more than five pages of the Decision. 

The finding of the Board

13.  The Applicant attended the hearing.  He was assisted by an interpreter.  He confirmed what he had previously told the Director (ie in his NCF and at the screening interview) was true.  The Board informed him about his burden of proof, the duty of joint endeavour on his and the Board’s part to establish his claim and his obligation to give only truthful evidence.  He was informed that if he gave evidence he would be questioned by the Board over matters which the Board had concerns.  He responded that everything he wished to say was contained in the hearing bundle and he had nothing new to say.  While appearing to be willing to answer the Board’s questions, when asked directly he changed his mind and said he wished to rely on the material in the hearing bundle.  The Board then informed him that it would therefore rely on the information contained in the hearing bundle.  After confirming he had nothing else he wish to say, the Board concluded the appeal hearing.

14.  The Board made the following finding in Paragraphs 44 and 45 of the Decision:

“Discussion and Findings

44. The [Applicant’s] claims are unsupported by either documentary or oral evidence and it was explained to him at the hearing in the absence of evidence from him the Board would be only able to consider the material presented by him to the [Director] together with the COI. It was clear to the Board from a detailed and lengthy reading of the papers in this case that the [Applicant’s] account of what allegedly happened to him in Pakistan contained clear vagueness, uncertainties, contradictions and the like which called for expansion, explanation, elucidation and clarification and as a result an oral hearing of the appeal was arranged to enable the [Applicant] to deal with those issues. In the light of the [Applicant’s] refusal to give evidence and answer questions from the Board the materials was re-examined again in the manner due to “Rehearing” and with regard to the fact that although the onus was on the [Applicant] to provide credible evidence that there would be a real risk or real chance or substantial grounds to believe that he would suffer the harm he claimed to fear, if he was to return to Pakistan, proof of the same was at the low standard as described earlier in this decision.

45. With [Applicant’s] election not to give evidence before the Board, the Board was left with no direct material from which to properly make findings as to his credibility in accordance with the principles set out earlier in this decision.  In addition with no oral evidence from the [Applicant] to possibly better or more fully present his claim and the grounds of his appeal, the Board finds that there is nothing to tell against the findings in the [Director’s] Decision dated 25 April 2017, that the [Applicant’s] non-refoulement claim on all applicable grounds failed.”

Legal principles applicable to judicial review

15.  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

16.  The Applicant did not advance any grounds for judicial review in the Form 86.  In his supporting affirmation, he advanced the following 4 grounds:

(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.

These grounds are very familiar to the Court as it has seen these grounds in identical terms in many other leave applications.  They appeared to be template grounds which usually have no bearing to the application at issue.  In the absence particular grounds or arguable grounds, the Court in an application for judicial review will examine the Decision with anxious scrutiny by focusing on errors of law, procedural unfairness and irrationality in the Decision.  The Court did not find it necessary to consider these grounds as it has more serious concerns about the Decision. 

Discussion

17.  The Board’s finding of fact and reasons for its Decision are all contained in paragraphs 44 and 45 of its Decision as quoted in paragraph 14 above.  It also summarized the Director’s findings in paragraphs 39 to 41 of its Decision and the 29 items of modifications to the Applicant’s evidence as stated in his NCF and his explanations for the inconsistencies in paragraph 38 of its Decision.  The basis of the Board’s finding is that there are clear vagueness, uncertainties and inconsistencies in the Applicant’s account which call for explanation, elucidation and clarification but the Applicant refused to answer the Board’s questions to explain the inconsistencies and to perfect his case. 

18.  First, the Court is concerned whether the Board had observed the high standard of fairness in its conduct of the oral hearing, which ended up with the Applicant’s decision not to give evidence.  I do not differ from the Board’s observation about vagueness, their damaging effect to a witness’ credibility and the need for explanation, explanation, elucidation and clarification.  While these observations may be obvious to the Board, they may not be to a non-refoulement claimant.  The high standard of fairness therefore requires that the claimant’s attention must be drawn to matters that obviously require explanation and to credibility issues relating to the Applicant and his case so that he may deal with them by making meaningful representation to the Board.

19.  What happened during the hearing was summarised by the Board at paragraph 43 of its Decision.  The Court noted from that paragraph as well as the Board’s reasons for its Decision in paragraphs 44 and 45 that the Board had rightly informed the Applicant of his onus to prove his claim, his obligation to give only truthful evidence, that he will be asked questions if he gave evidence.  Reading that paragraph as it stands (subject to correction after reading the transcript of the hearing or listening to the record), the Court could find nothing to suggest that the Applicant had been informed of at least some of the major inadequacies in his evidence.  He had not been explained, not even in general terms, the damaging effect of inconsistencies in his evidence.  It appeared that the Board’s reaction was neutral when the Applicant said he wished to rely on the material in the hearing bundle only and declined to answer the Board’s question.  The Board then simply informed him “that the Board would therefore rely on the information contained in the appeal bundle.”  The Court is therefore concerned whether when deciding not to testify, the Applicant was aware that there may be credibility issues in his claim, if the vagueness, uncertainties and inconsistencies were not explained.  I think it is at least arguable that the Board failed to observe its high standard of fairness by failing to draw the Applicant’s attention to the fact that certain aspects of his evidence calls for expansion, explanation, elucidation and clarification which, if not properly dealt with may damage his credibility and the credibility of his claim.

20.  Second, the Court is concerned whether the Board had given reasons or adequate reasons for its Decision.  Section 23(3) of Schedule 1A of the Immigration Ordinance provides that the Board must give its decision with reasons in writing.  In summary, the Board’s reason for dismissing the Applicant’s appeal is that it found his claim was unsupported by either documentary evidence or oral evidence; that there are clear vagueness in his case which called for explanation and that by reason of the Applicant’s refusal to answer the Board’s questions to perfect his claim, there is nothing to tell against the findings in the Director in his Notice.   A careful analysis of the Board’s discussion and findings in paragraphs 44 and 45 of its Decision shows that these reasons are devoid of contents.

21.  The Board found in paragraph 44 of its Decision that the Applicant’s account contained clear vagueness, uncertainties, contradictions and the like which called for expansion, explanation, elucidation and clarification.  These are findings of facts which the court in a judicial review usually must respect.  However, these “clear vagueness, uncertainties, etc” have not been identified in the Decision.  While inconsistencies usually damage a witness’ credibility, the extent of damage depends on the number and nature of the inconsistencies and the effect on the evidence relating to the other core issues.  Hence, what these inconsistencies are is highly relevant.

22.  One may reasonably assume that the inconsistencies etc are among the 29 items mentioned in paragraph 38 of the Decision.  But among these 29 items are other facts and explanations given by the Applicant to explain some of the inconsistencies.  Not only had the Board not identified the inconsistencies, it does not even seem to have considered the explanations and the other facts given by the Applicant at the screening interview and whether they are capable of explaining the inconsistencies.  The Board may have relied on the findings of the Director, but it never said it had adopted the Director’s finding or agreed with it and its reasons for doing so. All that the Board found was the Applicant’s claim were unsupported by either documentary evidence or oral evidence; that there are clear vagueness in his case which called for explanation and that by reason of the Applicant’s refusal to answer the Board’s questions to perfect his claim, there is nothing to tell against the findings in the Director in his Notice.   But it gave no reasons for making those findings.  The Board is under a duty to give reasons or adequate reasons for its Decision.  It is therefore arguable that the Board erred in law by failing to give or failing to give reasons or adequate reasons for its Decision. 

23.  Lastly, the Court is concerned whether the Board adopted the proper approach in its conduct of the appeal.  After repeating the Applicant’s failure to give evidence and the absence of direct material from which to properly make findings as to his credibility, the Board said in the concluding sentence of paragraph 45:

“the Board finds that there is nothing to tell against the findings in the [Director’s] Decision dated 25 April 2017, that the [Applicant’s] non-refoulement claim on all applicable grounds failed.”

24.  It appears from reading this sentence that the Board assumed its function in an appeal is to determine whether the Director erred in making the decision in the Notice and not to conduct the appeal by way of rehearing, ie to consider the evidence afresh rather than whether to uphold or to reject the Director’s decision in the Notice. It is therefore arguable that the Board erred in law by failing to determine the appeal by way of rehearing.

Conclusion

25.  For the above reasons, leave to apply for judicial review of the Board’s Decision on the ground is allowed that (1) the Board was in breach of the high standard of fairness in failing to draw the Applicant’s attention to the fact that certain aspects of his evidence calls for expansion, explanation, elucidation and clarification which, if not properly addressed may damage his credibility and the credibility of his claim; (2) that it erred in law by failing to give or failing to give adequate reasons for its Decision; and (3) that it erred in law by failing to conduct the appeal by way of rehearing.  The Applicant is also granted leave to amend his Form 86 by adding the above grounds of application. Leave to apply for judicial review to the extent it relates to the Director’s decision in his Notice is refused.  For avoidance of doubt, the specific grounds pleaded by the Applicant which have not been dealt with in this Form CALL-1 will be considered in the substantial hearing.  

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 23 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 549

[6]  [2018] HKCA 524 at [14(1)]