MAZHAR RIZWAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1020/2020

[2022] HKCFI 1126

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1020 of 2020

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.   Withdrawal of the application for leave to apply for Judicial Review be refused; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.   There are two applications before the Court: (1) the Applicant’s application by Form 86 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 12 May 2020 (the “Decision”); and (2) his application by way of affirmation filed on 31 January 2022 to withdraw that application (the “withdrawal application”).  

2.   The Applicant sneaked into Hong Kong from the Mainland in about October 2014.  On 10 December 2014, he lodged his claim for non-refoulement protection.  His claim was assessed on all four applicable grounds available under the USM, namely, Torture Risk[1]; BOR 3 Risk[2]; BOR 2 Risk[3] and Persecution Risk[4] grounds.  By his notice of decision dated 10 November 2017 (the “Notice”), the Director dismissed his claims.  The Applicant appealed to the Board.  His appeal was dismissed by the Board’s Decision.  This is the decision in respect of which the Applicant sought a judicial review under the leave application.

3.  Then, on 31 January 2022, the Applicant applied by way of affirmation to withdraw his leave application.  The reasons stated in his affirmation are:

“I want go back home. Cancel my case. Because my problem finished.”

That is only a statement of his intention to cancel his case and to return to Pakistan, but is equivocal as to the underlying reason for withdrawing the leave application in light of his fears, risks and claims for protection, his appeal against the Notice and the grounds of his application for leave to apply for judicial review of the Decision. To ensure that his decision to withdraw was made voluntarily and not as a result of threat, duress or other inappropriate reasons and to ensure that he will be safe if returned to his home country, the Court wrote to him on 25 February 2022 informing him that his application is adjourned to 16 March 2022 for hearing.  The Court also gave him directions to lodge a statement setting out his grounds for withdrawing his leave application, stating in particular:

(i)     how was his problem solved; and

(ii)     whether he still anticipates any real chance that he will be harmed or otherwise ill-treated by members of the Pakistan Muslim League (Nawaz), if refouled back to Pakistan; and

(iii)   his submission in support of the application, if so desired.

4.  He was also informed that the withdrawal application as well as his leave application, if the withdrawal application is refused, will be determined on paper, if he does not attend the hearing, regardless whether the above directions have been complied with.  A separate formal notice of hearing was also sent to him by post on the same day.  The letter containing the directions and the notice of hearing were sent to him to the address as stated by him in his affirmation filed on 31 January 2022.  They were not returned through the post.

5.  The Applicant did not respond.  There is nothing to suggest that he has changed his address or has not received the correspondence.  Having considered the nature of the two applications and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the applications be determined on paper without an oral hearing.

The Applicant’s case

6.  The following is a summary of the Applicant’s case mainly based on the information in the non-refoulement claim form prepared by him with the assistance of the Duty Lawyer Service.  In gist, his case is that if returned to his home country, he would be harmed or even killed by members of the Pakistan Muslim League (Nawaz) (“PMLN”), a political party in Pakistan.

7.  The Applicant is a Pakistani national, now 31 years of age.  He claimed he had joined the Pakistan Tehreek-e-Insaf (“PTI”) political party in 2013. He was the secretary of the PTI at the Union level in his area and actively promoted the party.  A week before the general election in May 2013, there was a fight between the PTI and the opposing political party PMLN in the Rawalpindi District involving 500 to 600 men from each side.  His friend was shot in the chest and died.  He accompanied the body to hospital and gave a statement to the police.  He could not identify the shooters.

8.  PMLN won the election.  About two weeks after, five to six unknown members of PMLN came to his house and warned him not to be a witness in the murder of his friend or they would kill him.  He made a report to the police, but the police did not entertain him.  The group came again the following week “and posted a threat” to him.  He was afraid and left his home to stay with a friend in Rawalpindi.

9.  He was told by his friend that PMLN was still looking for him and would kill him.  Having discussed with his family, he flew to China on 22 September 2014 and stayed for 33 days before sneaking into Hong Kong. 

The finding of the Board

10.  The Applicant gave evidence before the Board.  He said he had urged people to vote for Imran Khan in the general election in 2013 as it was Imran Khan’s first time as a candidate.  According to available and credible Country of Origin Information (“COI”), Imran Khan founded the PTI in 1996 and was first elected as a member of the National Assembly in 2002.  Having tested the Applicant’s evidence and knowledge of PTI against the COI, Board found his claims in general have little credibility.  Besides, PTI is now the ruling party in Pakistan and the available COI indicates that the police and military in Pakistan actively supported the PTI during the last election.  The Board was not satisfied that the Applicant has established that there are substantial grounds which support the conclusion that he will face a real risk of ill-treatment as claimed should he return to Pakistan.  Accordingly, the Board found there was no factual basis to support the Applicant’s claims for protection under any of the applicable grounds under the USM and dismissed his appeal.

The withdrawal application

11.  Despite the Court’s directions, the Applicant declined to state his grounds for withdrawal or confirm that his alleged fears and risks of harm had been resolved or that he does not anticipate any real chance that he will be harmed or otherwise ill-treated by members of PMLN, if returned to Pakistan. The Court is skeptical of the reason for his non-refoulement claims, his application for leave to apply for judicial review as well as his withdrawal application.  It is not unusual that some applicants would return and appeal the court’s decision allowing the withdrawal on grounds of duress, procedural unfairness or irrationality or even procedural unfairness.  It would therefore be in the Applicant’s best interest to have his leave application determined in order to ensure that he would be allowed to continue his stay in Hong Kong if it is unsafe to return to his home country rather than to allow his withdrawal application and thereby depriving him the benefit of a screening of his entitlement to challenge the Decision by way of judicial review.  Hence, the Court refused the Applicant’s withdrawal application and proceeded to determine his leave application.

The applicable legal principles

12.  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

13.  The Applicant’s sole ground for his leave application as stated in paragraph 8 of his Form 86 is the Board’s breach of procedural fairness in the four areas:

(1)     the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)     the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)     the Board’s decisions to refuse the appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness; and

(4)     the Board failed to meet the greater care and duty owed to a self-represented claimant.

The other seven paragraphs are about the relief sought and other irrelevant matters which have no bearing to his leave application, such as an order for costs that the Applicant’s own costs be taxed pursuant to Legal Aid Regulations; but the Applicant is not legally aided in this application. 

14.  The arguments and facts set out in his supporting affirmation revolve around procedural unfairness in the following respects:

(1)     lack of legal representation (paragraph 6);

(2)     lack of time for preparation for the hearing (paragraphs 7 and 11);

(3)     lack of language assistance (paragraph 8 and 10);

(4)     the Board’s failure to notify him of the outcome of the appeal (paragraph 9);

(5)     the Board’s reliance on outdated materials (paragraph 12);

(6)     no screening interview for BOR 2 Risk ground (paragraph 13); and

(7)     the Board arrived at the wrong decision (paragraphs 15 to 17).

These arguments are treated as arguments and further and better particulars in support of the grounds raised in the Form 86.  They are dealt with below.

Points (1), (2) and (3): lack of legal and language assistance and time for preparation

15.  These points are all inter-related and may be dealt with together.

16.  The Applicant was legal represented up to the conclusion of the screening interview, but not at the appeal before the Board.  In Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[11] nor the judgment of FB v. Director of Immigration[12] prescribes that 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.  The real question is whether the claimant is prejudiced for want of legal and language assistance.

17.  The Applicant had the benefit of legal representation in presenting his case to the Director.  All the benefits that legal representation could have afforded him were contained in his written submissions, non-refoulement claim form and answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  Despite he was not legally represented at the hearing before the Board, all the benefits which legal representation could have afforded him were before the Board.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board.  The Applicant suffered no prejudice due to lack of legal representation before the Board.

18.  The Applicant said that the appeal bundle is in English.  He did not have sufficient time to prepare for the hearing and did not have the means to hire the services of an interpreter.  As a matter of law, a claimant does not have absolute right to free language assistance at all stages of the proceedings.  In Karamjit Singh[13], the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, he has to live with or cope with his language disability.  He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit as and when he requires.  He has to find assistance himself from among his friends and his ethnic community.  Indeed, the Applicant was able to file an adequately well written Form 86 and supporting affirmation in English showing he has access to interpretation services.

19.  The Applicant complained that the hearing bundle was served on him a few days before the hearing including an intervening weekend.  He did not have sufficient time to prepare for the hearing before the Board.  It must be noted that the appeal bundle is basically made up of his NCF, the record of his screening interview, and the Director’s Notice of Decision with the COI.  He knows what is contained in his NCF which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service. He knows what is contained in the record of screening interview which he attended with the assistance of interpreter and legal representation.  The record had been read back to him in his own language and he signed to acknowledge that he understood and agreed with its contents and that no amendment was necessary.  Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips.  The Notice and COI are in English and unfortunately have not been translated.  As mentioned above, he has to find assistance himself from among his friends and his ethnic community. 

20.  The single most important document in the hearing bundle is the Notice of Decision which contains the reasons why the Director refused his non-refoulement claims.  It was issued on 10 November 2017.  The oral hearing was conducted 18 November 2019.  In between, he had more than two years to find out what the appeal bundle is about, if he was at all serious in pursuing his non-refoulement claim.  As for the other documents, except for the COI, the information therein was provided by him, although reduced into English.  He was familiar with the information.  Viewed in that context, the time was short, but not inadequate as to amount to procedural unfairness.  He should have exercised due diligence in preparing for his appeal before the Board than to indulge in the leisure of the weekend and then complain about lack of time and procedural unfairness.  If he need more time to prepare for the appeal, he could have raised that with the Board, but he did not. 

21.  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.  If he was genuinely confused, he should have sought assistance from the Board or asked for an adjournment to enable him to prepare for the hearing.  He did not.  It lies ill in his mouth to attempt to overturn the result of the hearing on this ground.

Point (4): The Board’s failure to notify him of the outcome of the appeal

22.  This complaint is not verified.  Even accepting that the Applicant had requested the Board to notify him of the outcome of the appeal, the failure had no bearing on the procedural fairness or otherwise of the non-refoulement proceedings.  What had been decided by the Board had been decided.  An early notification could not change the Board’s decision.  There is no evidence that the Applicant suffered any prejudice as a result of the failure.  He was able to lodge his application for leave to apply for judicial review in time.

Point (5): The Board’s reliance on outdated materials

23.  The Applicant complained that the COI relied on by the Board is not officially recognised and is hearsay or outdated.  Hence, the 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 source, including Country of Origin Information Report of Pakistan issued by the United Kingdom Border Agency Home Office published on 9 August 2013; Country Report 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. 

24.  Two important COI relied on by the Board are that Imran Khan founded the PTI in1996 and was first elected as a member of the National Assembly in 2002.  The accuracy or otherwise of these COI must be notorious known in Pakistan and to the Applicant who claimed to be a secretary of PTI and supporter of Imran Khan.  Other than a bald assertion of unreliability and hearsay, the Applicant did not challenge the accuracy of this COI and provided no particulars as to what are untrue, not to mention his failure to provide any publication contradicting these COI.  The court considered this argument totally groundless.

Point (6): No screening interview for BOR 2 Risk ground

25.  The Applicant’s claims under all four applicable grounds under the USM, including BOR 2 Risk ground, were explored at the screening interview.  There is no practice or requirement that a separate screening interview must be conducted in relation to BOR 2 Risk ground.  There is no substance in this argument.

Point (7): The Board arrived at the wrong decision

26.  This is plainly a challenge of the Board’s finding of fact.  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, only for errors of law, procedural unfairness or irrationality. 

27.  Having rigorously examined the Board’s Decision, the Applicant’s grounds for application, the papers and the evidence with anxious scrutiny, the Court was 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 claims are founded on his fear of harm by members of PMLN.  The Decision of the Board was based on its finding of the Applicant’s incredibility and assessment of his risk of harm.  The Board had carefully weighed the evidence and assessed his credibility.  The Board found him incredible.  As the Applicant bears the burden of prove of his claims, such a finding is fatal.  It was on that basis that the Board found that there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. 

28.  The Board’s Decision is a finding of fact which is 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 Decision was utterly without fault.  There were no errors of law or procedural unfairness in its Decision.  The Board observed a very high standard of fairness.  Its Decision did satisfy the enhanced Wednesbury test.  Having considered his grounds for application, the Court was satisfied that the Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  For the above reasons, leave to apply for judicial review was refused.

Conclusion

29.  For the above reasons, the Applicant’s withdrawal application and leave application are 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