Ali Bilal Alias Babar Ashraf v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 855/2018

[2020] HKCFI 2039

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 855 OF 2018

BETWEEN

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 C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1978, is a national of Pakistan.  He arrived in Hong Kong on 19 June 2008 and was intercepted by the police on the same day.  He then lodged a non-refoulement claim.  He was subsequently released on recognizance.  Thereafter, when he remained in Hong Kong, he was convicted of possession of dangerous drug and also bound over for an assault allegation.

3.Immigration record also revealed that the applicant used the name of Babar Ashraf to come to Hong Kong on 11 May 2003 and was allowed to remain as a visitor.  He overstayed and arrested by the police.  On 7 August 2004, he was removed for Pakistan.

4.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para 6-14 of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by supporters of the Pakistan People’s Party (PPP) because of a loan made by his childhood friend to a PPP supporter.  In February 2008, the PPP won the general election.  Later, the applicant was arrested and beaten up in a police station.  He knew that the police officers were influenced by the PPP.

The Director’s decision

5.On 20 January 2017 the applicant was scheduled to participate in an interview (“the Interview”) with an Immigration Officer (the “Officer”) acting for the Director, but his lawyer advised that he was ill and unable to attend. The Officer required that the applicant submit a medical certificate by 23 January 2017, failing which the Officer advised that a decision would be made on the available information. On 23 January 2017, his lawyer sought a 7-day extension to submit a medical certificate. The Officer granted an extension to 27 January 2017. The applicant did not submit a medical certificate and on 9 February 2017, the Officer issued a decision on behalf of the Director denying the applicant’s claim for protection.

6.By a notice of decision dated 9 February 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for the reason that the claim was not substantiated.  The decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].  The applicant lodged an appeal/ petition to the Board against the Director’s decision.  He attended a hearing before the Board on 4 April 2018 and gave oral evidence at the hearing.

The Board’s decision

7.By a decision dated 10 May 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

8.The Board gave detailed reasons for rejecting the claimat [53-80] of its decision.  In a nutshell, the Board found: his evidence was vague and varied in significant aspect [53]; he was not a credible witness and the centrepiece of his story had not been established [69]; and there was no evidence the Pakistan government has an adverse interest in him [77].  Having considered the totality of the evidence before it, the Board rejected substantially the applicant’s factual basis underlying the applicant’s non-refoulement claim.  Therefore, he was not at real risk of any of the proscribed types of harm.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 17 May 2018 for leave to apply for judicial review of the decision of the Board.  He did not request an oral hearing.  The application is therefore considered on the papers.

10.The Form 86 and affirmation in support did not contain any specific grounds for judicial review.  By a letter dated 19 May 2020, the court invited the applicant to submit information including any submissions that he would like to make.  The court then received a letter from the applicant attaching the decisions of the Director and the Board.  It contained no submission of his case.

Discussion

11.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

12.As the Director’s decision has been superseded by the Board’s decision, it is not susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the Court examines the decisions of the Director and the Board, it will only focus on the latter’s decision.

13.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected the accounts of primary facts based on the major inconsistencies and contradictions in the applicant’s evidence. The centre piece of the applicant’s story was not proved.  On the factual findings, there was no basis for the applicant’s fear.

14.As mentioned, assessment of evidence/ primary facts and the risk of harm are within the province of the Board and the Director, this court will not interfere with the decisions unless there is a public law ground for the Court to do so.

15.The applicant did not provide any particulars as to how the Board was unfair or unreasonable in the public law sense.

16.The Board with the benefits of hearing the applicant’s oral evidence rejected the non-refoulement claim essentially on its adverse finding on the applicant’s credibility for the thorough and detailed analysis and reasoning set out in its decision.  I do not find any reasonably arguable basis to challenge the findings of the Board.

17.It is noted that the Board engaged in a joint endeavour with the applicant and considered all relevant criteria, gave the applicant a reasonable opportunity to state his case, and enquired into the issues appropriately.  There cannot be any criticism of its determination which is eminently reasonable.

18.The applicant had delayed the screening process by asking for extension of time to return the completed non-refoulement claim form and defaulting the screening interviews without proof of his claimed medical condition.  Given all the circumstances, I do not find the Director proceeding to consider the applicant’s claim on the basis of all the information and material available to him unfair or unreasonable.  In any event, the applicant’s claim was considered by the Board fairly by way of a re-hearing of his evidence in an oral hearing.

19.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness.

Disposition

20.For the reasons given, there is no realistic prospect of success in the applicant’s intended application.  I accordingly refuse to grant leave to apply for judicial review.

Dated 24 August 2020

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