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

HCAL 2312/2018

[2021] HKCFI 127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2312 OF 2018

BETWEEN

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 decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).  The Director refused the applicant’s claim of non-refoulement protection.  The Board dismissed the applicant’s appeal confirming the decisions of the Director.

2.The applicant, born in 1993, is a national of Pakistan.  On 18 March 2016, he was arrested by the police and referred to the Immigration Department for investigation.  He then lodged a non-refoulement claim.  He was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [24-34] 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 his paternal uncle, Akram, as he refused to transfer a piece of land to his uncle.  The applicant claims that in December 2015 he bought some land with all his savings.  On several occasions in 2015 and 2016, Akram asked him to transfer his land to him but he refused.  Akram assaulted him and threatened to kill him if he did not do so.  On 15 February 2016 which was an election day, when the applicant refused again, Akram fired at him.  He was able to escape but his maternal uncle, Aslam, who was accompanying the applicant was shot dead.  The incident was reported to the police.  Akram was only detained for a day because he was an influential person being a member of the Pakistan Muslim League (Narwaz).  He therefore fled to Guangzhou on 6 March 2016 and later entered into Hong Kong illegally.

The Director’s decisions

4.By notices of decision dated 1 September 2016 and 23 March 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.In his first decision, the Director found that the information provided by the applicant was not credible [10].  Nevertheless, the centrepiece of his claimed fear was not considered not credible [11].  Having taken into account all relevant circumstances, the Director assessed that there are no substantial grounds for believing that Akram would ill-treat or even kill him and that his perceived fear is real and foreseeable.  He found that state protection is available to the applicant and internal relocation is a viable option for him which lowers or negates the perceived risk [14, 15].

6.Subsequently the Director invited the applicant to submit additional facts, if any, which he considered relevant to a claim for non-refoulement on the ground of BOR 2 risk.  The applicant did not submit any additional facts.  In his second decision, the Director rejected the claim on that ground as well.

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

The Board’s decision

8.The applicant attended a hearing before the Board on 6 December 2017.

9.By a decision dated 11 October 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

10.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [48-65] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the applicant’s account of events varied so significantly over time seriously undermines his credibility [48];

(2)  the inconsistencies and a lack of a plausible explanation cast doubt on the credibility of his evidence and the truth of his claim that he had been harmed by Akram because of a land dispute [49];

(3)  the applicant is not a credible, truthful and reliable witness [54];

(4)  in any event, he can relocate to another area within Pakistan [56].

11.Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

12.The applicant filed a Form 86 on 23 October 2018 for leave to apply for judicial review of the decision of the Board.

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

14.In the Form 86 the applicant did not name the proposed respondent, but he named the decision dated 1 September 2016 (which is the date of the first decision of the Director) as the decision under challenge.  In the affirmation in support, again he did not name the respondent and stated that “I would like to reject and set aside the decision made by immigration department…”  However, he attached with it the decision of the Board.  In the confusing circumstances, I will treat his application as against both decisions of the Director and the decision of the Board.

Discussion

15.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.

16.Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  The application to challenge the decisions of the Director would be out of time and the applicant did not ask for extension of time or give reason for the delay.  There is no good reason to give extension of time.

17.Further, when the applicant pursued the appeal to the Board, the Director’s decisions were superseded by the Board’s decision 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 decision.

18.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and found him to be an incredible witness.  The Board rejected his account of primary facts based on the major inconsistencies and contradictions in his evidence.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.  In any event, the Board found that the applicant could relocate to another area within Pakistan.

19.As explained above, the assessments of evidence, risk of harm, 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.  He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.

21.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.

22.The Board, with the benefits of hearing the applicant’s oral evidence, rejected the non-refoulement claim mainly based on its adverse finding on the applicant’s credibility with detailed reasons set out in its decision.  I do not find any reasonably arguable basis to challenge the findings of the Board.

23.Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

24.There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

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 21 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