Farooq Umar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2119/2018

[2021] HKCFI 1455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2119 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 submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 27 September 2018.

2.The Applicant is a Pakistani national.  He left Pakistan on 2 May 2015 for China by air.  From there, he entered Hong Kong on 13 May 2015 and surrendered to the Immigration Department on 11 June 2015.  On 22 October 2015, he lodged a non-refoulement claim by written signification.  on 21 September 2017, he submitted his non-refoulement claim form.  

3.In due course, his non-refoulement claims were assessed on all four applicable grounds then available under the Uniform Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4] grounds.

4.By a Notice of Decision dated 17 October 2017 (the “Notice”), the Director of Immigration (the “Director”) rejected his claims. He appealed to the Board against the decision of the Director in the Notice.  On 27 September 2017, the Board refused his appeal and confirmed the decision of the Director in his Notice (the “Decision”).  On 4 October 2018, he applied for leave to apply for judicial review against the Decision of the Board.

The Applicant’s case

5.The following account of the Applicant’s case is mainly based on the information in his written representation, non-refoulement claim form which was prepared by him with assistance of the Duty Lawyer Service, and the record of his screening interview. 

6.The Applicant is a citizen of Pakistan born in September 1990.  He had received 12 years of education.  He is single.  His parents reside in District Attock. 

7.At the time, there were two widely known political parties in Pakistan, namely Muttahida Quami Movement (“MQM”) and Pakistan People’s Party (“PPP”).  The Applicant was advised by his friend Shafiq to join MQM by telling him that MQM could assist him to obtain employment in government.  He joined and participated in public meetings, corner meetings and rallies for MQM.  He was told by his sector-in-charge that he had to do more before he could be given a government job.  His participation escalated from making extortion demands, creating chaos in public and religious meetings held by the opposition parties to a target killing.  That target killing was aborted for the target did not appear at the place where the ambush was laid. His parents were shocked when they heard about what he had done.  The Applicant wanted to leave MQM.

8.Following MQM’s defeat at the 2013 election, the sector-in-charge asked the Applicant to meet him and told him that due to the electoral loss there was “even more” for the party to do.  he threatened the Applicant that he could not leave the party, otherwise he would face “consequences”.  The Applicant was frightened.  He did not respond but stayed at home for a few days.  Then his father told him to join the PPP for protection. 

9.In or about August 2013, the Applicant joined PPP and informed Shafiq.  Shafiq warned him that MQM might kill him.  Then he received a call from the sector-in-charge who told him that he had to face consequences for leaving MQM.  Since then, he received life threatening telephone messages.  He sought help from senior members of PPP, but they did not take any action.  In the same month, he was assaulted by members of MQM who also threatened to kill him if he did not return to MQM.  On the following day, he and his father reported to the police.  The police took no action.

10.After he recovered from his injuries, the Applicant’s father sent him to his friend’s place in Attock for hiding.  He changed his telephone number and stayed there for about two years.  He maintained contact with his family.  One day, his father told him that he received calls from MQM members saying that they will kill the Applicant if they found him.

11.In April 2015, MQM located him and called him threatening to kill him.  Then, the Applicant’s father arranged for him to fly to China on 3 May 2015.  From there, he entered Hong Kong on 13 May 2015.  Then, he surrendered to the Immigration Department on 11 June 2015.

The finding of the Board

12.On the basis of the Country of Origin Information (“COI”), the Board accepted that MQM is a Karachi-based secular political party which advocates for the rights of Mohajirs or Urdu speaking Muslim migrants and their descendants from India. The COI confirmed that MQM is extensively involved in extortion activities in Karachi.  There are news reports from 2017 which showed that 52 people were killed in the previous two years for not paying extortion money and that police confirmed that thugs working for MQM are the greatest extortion menace in the city.  An article from the PakTribune also confirmed the Applicant’s claims that MQM is involved in target killings.  To a great extent the Board accepted the Applicant’s evidence of what MQM was capable of doing and had done.

13.However, the Board was not satisfied that the Applicant was a truthful witness.  The Board found him obfuscated and became increasingly evasive during the hearing when inconsistencies regarding aspects of his evidence were discussed with him.  The Board did not accept that the Applicant had at any time any involvement with MQM in Karachi such as that he extorted money from local businesses, or was associated with persons involved in target killings.  It concluded that he had manufactured the totality of his claims in an attempt to establish that is owed non-refoulement protection in Hong Kong.

14.The Board considered that the entirety of his case was full of inconsistencies.  There are inconsistencies in his claimed employment as a salesman for Warid Telecom, Kemari, Karachi between 2011 and 2013 and his work for MQM during that period. There are inconsistencies about his or his father’s reporting MQM’s threat and assault to the police.  The inconsistencies may not appear to be material, but may reflect that the allegations never occurred.  Indeed, the Board concluded that the totality of his claims had been fabricated.  In paragraphs 62 and 63 of the Decision, the Board said:

“62. Accordingly, having considered all of the evidence I do not accept that the [Applicant] at any time had any involvement with the MQM. I do not accept he was a member or that he undertook any illegal activities at any time for the MQM, including extortion or driving a vehicle for target killers. I do not accept that he later refused to do so or that he was attacked, harmed or threatened in any way, or that he joined the PPP for protection. I do not accept he went into hiding or fled from Karachi to Attock or that his family is in hiding in Attock as a result of threats. I do not accept that the [Applicant] left Pakistan for any of the reasons he has claimed, and I consider that he left Pakistan for Hong Kong for reasons entirely unrelated to those that he has put forward.

63. In view of the above findings I am not satisfied that there are substantial or strong grounds or a real chance or a real risk that he will suffer harm amounting to torture, CIDTP/torture, a risk to his life or persecution upon his return to Pakistan.  My consideration of the above findings against each of the applicable grounds is discussed below.”

On the above findings, there are no factual basis to support the Applicant’s non-refoulement claims on any of the four applicable grounds.

Grounds for judicial review

15.In his affirmation dated 4 October 2018 filed in support of his application, the Applicant said that the reason for his application is that he has problems in his country and if he goes back the opposite party will kill him.  Basically, he is challenging the Board’s finding of facts and his credibility. 

16.This cannot constitute any reason for judicial review.  This is because the role of the court in judicial review is not to re-assess the non-refoulement claim 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, for errors of law, procedural unfairness, unreasonableness or irrationality:  see Nupur Mst v Director of Immigration[5]. The validity of this ground will become obvious after considering all his grounds of application.

17.In response to the Court’s letter dated 24 December 2020 inviting submissions, the Applicant advanced a 10-point submission.   Points (1), (5), (8) to (10) are statements of facts and his request for an oral hearing.  There are five grounds for judicial review.  The main thrust of his five grounds is procedural unfairness. 

18.Under Ground (1)(A) (ie point (2)(A) of his submission), the Applicant accused the Board of having unlawfully fettered its discretion by refusing his appeal on the grounds that he did not satisfy the requirement for non-refoulement protection.  This cannot be a valid ground.  If he did not satisfy the requirements for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the Notice and dismiss his appeal.  The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness, unreasonableness or irrationality in its Decision.  The Court returned to this ground after setting out all his grounds of application.

19.Under Ground (1)(B) (ie point 2(B) of his submission), the Applicant accused the Adjudicator, ie the Board, of having acted in a procedurally unfair manner in dealing with his appeal.  He did not give any particulars.  At the hearing, he was asked to provide particulars.  He was unable to do so.  In answer to the Court’s question, he confirmed that he was given the opportunity to address the Board and the Board never prevented him from making submissions. 

20.The Applicant was asked whether he had the services of an interpreter at the oral hearing before the Board, he said he had but complained that he could not understand what the interpreter said because the interpreter spoke very fast.  This is inconsistent with the impression one gets reading the Decision.  It is a first time allegation which never appeared in his grounds.  He said he forgot to mention it in his submission.  The Court considered that a lame excuse and instant concoction.

21.The Applicant was asked in what way was the Decision unreasonable or irrational.  He said he felt the Board made some mistakes, but could not particularise.  He said he could not remember because it was too long ago.

22.The Court had rigorously examined the Decision with anxious scrutiny. The Adjudicator had set out the law clearly.  She reminded herself that while the Applicant bears the burden of proof of his claim, that burden is subject to the high standards of fairness required in these proceedings.  She correctly adopted the civil standard of proof.  In assessing the evidence, she reminded herself that a claimant may have fled from his home country with few belongings and documents and has difficulties in proving his case.  The Court was unable to find a scintilla of evidence suggesting the Adjudicator acted in a procedurally unfair manner. It was satisfied that the Adjudicator committed no errors of law or did nothing which could be regarded as procedurally unfair or made no decision which was Wednesbury unreasonable or irrational.

23.Under Ground (1)(C) (ie point (2)(C) of his submission), the Applicant argued that the Decision was unreasonable or irrational in the public law sense or is a result of procedural errors or unfair. Again, he gave no particulars. The complaint of procedural unfairness was covered in Ground (1)(B) and rejected by the Court.  The other allegations of error and unreasonableness were considered by the Court below.

24.Under Ground (1)(D) (ie point (2)(D) of his submission), the Applicant accused the Board of failing to meet the greater care and duty owed to a self-represented claimant.  Again, he did not particularize the alleged failing of the Board.  In the opinion of the Court, on the face, the Board had fully considered the Applicant’s case; and he suffered no disadvantage for not being legally represented.

25.Under Ground (2) (ie point (3) of his submission), the Applicant said that the majority of the documents in the appeal bundle were in English and he “strongly believe that there was insufficient time for [himself] to prepare for the hearing especially due to his limited skills in English and being unrepresented…”  The Notice was issued by the Director on 17 October 2017.  The hearing of the Board was held on 29 June 2018.  In between, he had eight months to ascertain from people within his circle who were conversant in English to interpret for him.  It lies ill in his mouth to say that for all these months he did not have sufficient time to arrange for interpretation and to prepare for his appeal.  Besides, the appeal bundle is basically made up of his non-refoulement claim form filled in by him with the assistance of a lawyer and an interpreter; the record of his screening interview which he attended with the assistance of a lawyer and an interpreter; and the COI.  He knows what is contained in his non-refoulement claim form and in the record of screening interview.  He could offer no answer to that.  The COI are, unfortunately, not in his first language.  He cannot expect these documents to be fully translated to him.  He has to find resources himself from among his friends.  Besides, he can write good English or has access to language assistance as reflected in his four-page submission.   After all, the COI are information about his own country issued by very credible source.  He ought to know about the information. 

26.In Re Zafar Muzzam[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 Sakthevel Prabakar v. Secretary for Security[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.  Taking a global view of the circumstances, the Applicant had the benefit of legal representation in presenting his case to the Director.  He also had the services of a qualified interpretation at the oral hearing before the Board.  Nothing amiss arose from the non-availability of legal representation before the Board or interpretation in preparing for the hearing. The Court found that the Applicant had failed to demonstrate any procedural irregularity in the proceedings before the Director and the Board, or any arguable basis to challenge the fairness of the process.

27.Under Ground (3) (ie point (4) of his submission), 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.  His complaint about lack of language assistance is covered by the preceding paragraph.  If he was genuinely confused, he should have asked for an adjournment from the Board to enable him to prepare for the hearing.  It lies ill in his mouth to attempt to overturn the result of the hearing on this ground.

28.Under Ground (4) (ie point (6) of his submission), the Applicant challenged the COI as being unofficially recognised and hearsay or outdated and 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 sources, including Country of Origin Information Report - Pakistan issued by the United Kingdom Home Office published on 9 August 2013; Country Reports on Human Rights Practices for 2016 – Pakistan, published by the United States Department of State; The Asian Report 2015 – Pakistan published by Asian Human Rights Commission; Official website of the Provincial Ombudsman (Mohtasib) Sindh; The Annual Report of the National Accountability Bureau 2015; and The World Factbook issued by United States Central Intelligence Agency.  At the hearing, he was asked why were these COI unreliable and what COI he had which he considered up-to-date and would contradict the COI considered by the Board, he was unable to answer.  Eventually, he said this ground was prepared by his friend.  He did not know much about it.  Other than a bald assertion of unreliability and hearsay, the Applicant provided no particulars as to what are untrue, not to mention his failure to provide any publication contradicting these COI and supportive of his claims.  The Court considered this ground totally groundless.

29.Returning to the overall or general complaint about irrationality and unreasonableness in the Board’s findings, these grounds of complaint are against the finding of facts by the Board.  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, for errors of law, procedural unfairness or irrationality.  Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness. The Board’s conclusion that there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds was utterly without fault.  There were no errors of law, procedural unfairness or irrationality in its Decision.

30.In Ground (5) (ie point (7) of his submission), the Applicant urged the authorities to take into account the real procedural unfairness throughout the case and to put public policies of trying to dispose of non-refoulement claims as quickly as possible aside.  This is just a wrap up of all the grounds which had been considered above.

Conclusion

31.Having fully considered the papers, the Court came to the conclusion that there is nothing that shows there was any error of law, procedural unfairness, unreasonableness or irrationality in the Decision of the Board. The Court found that the Board had adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Applicant’s claim is not reasonably arguable.  There is no realistic prospect of success.  Accordingly, the Court refused the application for leave to apply for judicial review.

Dated the 21^stday of May 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

[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 33 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 524 at para 14(1)

[6]  cacv 2/2018, (unreported) 23 March 2018

[7]  [2018] HKCA 14

[8]  [2018] HKCA 15

[9]  [2018] HKCA 17

[10]  [2018] HKCA 37

[11]  (2004) 7 HKCFAR 187

[12]  HCAL 51 of 2007, (unreported) 5 December 2008