Qaisar Bashir v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 2000/2018

[2021] HKCFI 62

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2000 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 submission by the Applicant in open court.

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 dated 19 September 2018 of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision dated 6 September 2017 of the Director of Immigration (“the Director”).  

2.The applicant, born in 1982, is a national of Pakistan.  He was arrested by Hong Kong police for illegal remaining on 18 December 2007 and referred to the Immigration Department.  He claimed that he entered into Hong Kong illegally by boat on 25 June 2007. He made a claim for non-refoulement on 12 September 2008.

3.Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by the family of his girlfriend, Kirin, with whom he had a love affair, should he return to Pakistan.  He also feared of being forced to continue his membership of an extremist Sunni group.  He claimed that he came from a Muslim family but the family of his girlfriend were Christians.  She lived in a grand house in an area for the rich.  In May 2007 his girlfriend told him she was pregnant.  One day, six strangers came to his house.  One of them was wearing police uniform and they beat the applicant up for a long time.  The man in police uniform told the applicant to leave the city within one week, or he would be jailed for life.  The applicant’s family was frightened.  His father told him to escape to other place.  The applicant fled to Lahore to stay with a friend who introduced him to an agent.  The agent said he would take the applicant to Hong Kong for a reward.  The agent first took the applicant to Karachi.  When they reached a hut, the agent hit the applicant and took away his money.  The applicant was kept in a dark room until one day when he was taken out and saw the man in police uniform who had assaulted him before.  The man assaulted him again saying that he would leave him alive.  However, if the applicant ever returned to Pakistan he and his family would be killed.  The applicant was then put on a boat with other people in it and then put into a container several days later.  Eventually the applicant landed in Hong Kong.  According to the applicant, one of his brothers, Azhar, was attacked on one occasion and injured by a reversing vehicle on another occasion after the applicant had left Pakistan.  The applicant believed that Kirin’s family was involved in the attacks.  The applicant also claimed that the political party he had joined before became more extreme and is now banned.  He is afraid of being forced to remain as a member of it.  Azhar told him that Kirin was murdered.  The applicant believed that she was the victim of “honour killing” by her family.  Honour killings are described as a custom in Pakistan in which mostly women and some men are murdered after accusation of sexual infidelity and the killers seek to avenge the shame that victims are accused of bringing to their families.

The Director’s Decisions

4.By notices of decision dated 20 April 2015 and 6 September 2017 respectively, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The first decision covered torture risk^[1], BOR 3 risk^[2], and persecution risk^[3]. The second decision covered BOR 2 risk^[4].  

5.Having taken into account all relevant circumstances, the Director in his first decision assessed the level of risk of harm as low.  He found that no government officials were involved, state protection would have been available to the applicant and internal relocation is a viable option for him.  

6.In his second decision, the Director considered the applicant’s legal representative’s further submission that the applicant would be accused of rape of Kirin, a crime which carries the possibility of a death penalty in Islamic law.  The Director evaluated the COI material submitted by the applicant and noted that the crime must be proven with evidence in court.  He found that there was no evidence that the applicant’s legal rights had been or would be deprived of for any reasons and that Pakistani police or authorities had acted beyond their authority for the claimed accusation of raping Kirin.  The Director found that the applicant failed to establish a personal and real risk of BOR 2 upon his return to Pakistan.

7.The applicant lodged an appeal/ petition to the Board against the Director’s respective decisions.

The Board’s Decisions

8.The applicant attended a hearing before the Board on 27 November 2015 for the appeal against the Director’s first decision, and on 12 July 2018 for the appeal against the Director’s second decision.  At the former hearing, the applicant was legally represented.

9.By a decision dated 10 June 2016 (“the Board’s first decision”), the Board rejected the appeal/ petition on the BOR 3 risk, the persecution risk, and the torture risk.  By a decision dated 19 September 2018 (“the Board’s second decision”), the Board further rejected the applicant’s claim, confirming the Director’s decision.  That decision covered the BOR 2 risk. The Board gave reasons for rejecting the applicant’s claim at paragraphs [66-151] of its first decision and [53-60] of its second decision. 

10.In its first decision, the Board found that the experience of the applicant did not attain the level of severity in pain or suffering to come within the definition of torture.  There is no evidence as to the real identity of the person in police uniform or that any of the assailants were acting in an official capacity.  It observed that clearly there was no intention exhibited to kill the applicant.  The applicant had not complained to any public authorities.  The state was not aware of his plight and there was no evidence that the state would have failed to exercise due diligence to prevent investigate prosecute and punish the non-state actors. Insofar as the political group that the applicant was afraid of, it is no longer a significant force in Pakistan and there is no evidence that it has influences over the whole of Pakistan.  The Board also found that state protection would have been available to the applicant and internal relocation is a viable option for him.  The ill treatment he feared was not well-founded.  The applicant has not substantiated his case on any of then applicable grounds and hence his appeal was dismissed.

11.In its second decision, the Board found that the applicant had not provided any meaningful additional materials and facts on the BOR 2 risk.  The Board considered the further written submission by his legal representative to the Director on the possibility that the applicant might be convicted of rape which is punishable by capital punishment and the article provided by the applicant entitled “What does Islamic law say about rape?”

12.The Board observed that the crime of rape must be proved with strict evidence in court. Moreover, the applicant’s evidence at the oral hearing was that he had no fear of his right to life being at risk upon return to Pakistan.  His fear was of being harmed and killed by the family of Kirin through illegal means.  The Board found that there is no evidence that there is a personal and real risk of the applicant being subjected to a BOR 2 risk, if refouled. Accordingly, the Board dismissed the applicant’s appeal and confirmed the second decision of the Director dated 6 September 2017.

Application for leave to apply for judicial review

13.The applicant filed a Form 86 on 21 September 2018 for leave to apply for judicial review of the second decision of the Board.  In his affirmation he attached a bundle consisting of 590 pages of documents and one audio CD disc.  Pages 15-17 of documents are in handwritings which are neither in Chinese or English.

14.No request for oral hearing has been made.  The application is therefore considered on the papers.

15.In the Form 86 and supporting affirmation, the applicant did not set out any comprehensible grounds for the relief sought.

Discussion

16.The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, 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, country of origin information, 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.

17.When the applicant pursued the appeal to the Board, the Director’s decisions were superseded by the Board’s decisions and are no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decisions of the Director.  This decision will only focus on discussing the Board’s decisions.

18.The Board did not take issue with the applicant’s asserted primary facts and events.  It however disagreed with the applicant on the assessment of risk flowing from such events.  Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection and viability of internal relocation.

19.As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

20.The applicant stated no grounds of the judicial review in Form 86.  Three pages among the documents attached to his supporting affirmation are in handwritings in a language not known to the court.  The applicant has a duty to provide document or translation of it in official language in Chinese or English for the court to understand it.  In the absence of translation, the court is unable to know what the applicant wanted to present.  The other documents appear to be the documents he submitted to the Board.  As explained, the role of the court in a judicial review is not to provide a further avenue of appeal and to consider the evidence afresh.  And having gone through the documents, I fail to see how the documents can assist the applicant.  The audio CD has no transcript and the court also fails to understand how it can assist the applicant’s case.

21.Given the applicant’s perceived risk is localised in his home province and the Board’s findings of availability of state protection and viability of local relocation, the applicant’s alleged fear of being harmed by Kirin’s family cannot be substantiated.

22.In respect of the claim of violation of his absolute and non-derogable right to life under BOR 2 because of the possibility that he would be sentenced to death penalty, the applicant needs to adduce evidence to establish a real risk that he will be arbitrarily deprived of his life.  There is no evidence that the Pakistani police will arrest and lay a false charge against the applicant for raping Kirin or they will act improperly.  In his own case, Kirin was a consenting party and she is dead already.  On such evidence, it is difficult to understand why he could be falsely prosecuted.  Even if he is prosecuted, there is no evidence that he will not receive a fair trial in the legal system of Pakistan. It seems very unlikely that he will be convicted of the rape charge.  Moreover, according to the COI material produced by the applicant, though the crime of rape is punishable by death, it is not a mandatory sentence.  On the evidence and facts of the case, there cannot be any substantial grounds for believing that the applicant would face a real risk of being subjected to treatment contrary to BOR 2.  I agree with the Board that there is no evidence that there is a personal and real risk of the applicant being subjected to a BOR 2 risk on his return to Pakistan.

23.In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

24.The evidence in the present case can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

25.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 in their decisions.

26.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

27.Accordingly, leave to apply for judicial review is refused.

Dated 19 January 2021

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