Butt Falak Sher v. Toture Claims Appeal Board/ Non Refoulement Claims Pettion Office

HCAL 2753/2018

[2021] HKCFI 1844

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2753 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:

1.  Leave be granted to amend the Notice of application for leave to apply for Judicial Review; and

2.  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/Non-Refoulement Claims Petition Office (the “Board”) dated 11 November 2018 (the “Decision”). The Board had not made any decision relating to the Applicant bearing that date, but had made one dated 11 October 2018.  Accepting the mistake to be a typographical error, the Court granted leave to amend the application to one in respect of the Board’s Decision dated 11 October 2018.

2.The Applicant is a Pakistani national.  On 19 February 2016, he lodged a non-refoulement protection application claiming that he had sneaked into Hong Kong on 16 February 2016.   He claimed that he will be harmed or killed if returned to Pakistan because of his land dispute with his uncle (the “Uncle”).

3.In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of Decision dated 25 October 2017 (the “Notice”), the Director of Immigration (the “Director”) rejected his claims.  His appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision dated 11 October 2018.

4.In his application, the Applicant requested an oral hearing.  Despite two hearings had been scheduled for him on 18 May and 22 June 2021, he did not appear.  Attempts were made to contact him on the telephone, he could not be reached.  Having considered the documents, the Court was satisfied that his application could be determined on paper.  Hereunder is the Court’s decision.    

The Applicant’s case

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

6.The Applicant said that his father (the “Father”) inherited a piece of farmland from the Applicant’s grandfather.  In October 2015, at the request of his Uncle, his father agreed to give half of the land to the Uncle so that the Uncle could build a house on it.  His Uncle owns a business in Saudi Arabia and is an active supporter of the Pakistan Muslim League (Quaid e Azam Group) (“PMLQ”).  When the Father returned home, the Applicant convinced the Father to keep it for their family. The Father reneged his promise to the Uncle. 

7.In the following week, the Uncle assaulted the Applicant twice.  When the Father telephoned the Uncle, the Uncle threatened to harm the Applicant more severely next time.  Four to five days later, the Uncle approached the Applicant with a gun and then beat him up.  The Uncle then pointed the gun at the Applicant and threatened to kill him if his Father did not give him the land. 

8.The Applicant was scared.  At the suggestion of his Father he fled to Hong Kong in February 2016.

The finding of the Board

9.Despite the Board was not satisfied with the Applicant’s evidence because of the lack of detail and inconsistencies with previous statements, it accepted he had a land dispute with his Uncle and his Uncle had beaten and threatened him. 

10.However, based on the Country of Origin Information (“COI”), the Board did not accept the Applicant’s allegation that PMLQ has great power and influence throughout Pakistan such that he could not relocate within Pakistan because of his Uncle’s connections to the PMLQ.  It is clear from the COI, PMLN, not PMLQ, has largely controlled the Gujrat district where the Applicant used to work for many years, including at the time of the events in which the Applicant claims to have been involved. The Board found that any connection which the Uncle may have with PMLQ would not prevent the Applicant from being reasonably able to relocate within Pakistan and it is not unreasonable to expect him to relocate simply because he has no friends or relatives outside his home area.  Primarily for this reason, the Board was not satisfied that the Applicant has established there are substantial grounds which support the conclusion that he will face a real risk of ill-treatment as claimed if he returned to Pakistan, because any risk he may face in his home area can be avoided by relocating to another part of Pakistan outside Gujrat.

Grounds for judicial review

11.The Applicant annexed a statement to his supporting affirmation filed on 4 December 2018.  In the statement, he said he was not satisfied with the Decision.  He repeated his land dispute with his Uncle, his Uncle’s connection with PMLQ, the assault and the fear.  He said he was not educated and did not fully understand the question put to him or reply them precisely.  He requested a professional interpreter well versed in Urdu and Punjabi language.  He said he did not have good money (presumably he meant “memory”) and sometimes forget.  He accused the Board of failing to conduct inquiries from reliable sources about the conditions in Pakistan and forced him to return to his home town.  He requested an oral hearing.  His grounds or complaints are largely challenges of the Board’s finding of facts, particularly the weighting given to the COI.  Given the absence of specific grounds for her application, the Court can only focus on possible complaints of error of law, procedural unfairness, unreasonableness, irrationality and breach of the high standard of care owed to an unrepresented claimant when considering his leave application.

12.His statement is basically a re-presentation of his case.  In fact, the Board assessed his risks on the basis of his factual case, namely, the land dispute, the assaults and threats by the Uncle.  Thus, much of his complaint about the Board’s findings of facts fell away.  What he disagreed strongly is the Board’s finding that it was safe for him to relocate himself elsewhere outside Gujrat.  He complained that the Board “failed to conduct inquiries from reliable sources and did not fully study the ground realities of [his] case and the aftermath in case [he is] being forced to return to [his] home town”.  

13.In the very first place, the Board did not force him to return to his home town.  The Board said it was safe and reasonable to expect him to relocate somewhere else in Pakistan other than Gujrat.  It would be unrealistic to require the host country to make on the ground inquiries about the conditions in the risk state complained of by the claimant.   The Court did not think any principle laying down the high standard of fairness would require the host country to make such on the ground inquiries.  The Board had considered the COI from credible and official sources, including 2016 Human Rights Report: Pakistan published by the United States Department of State; The World Fact Book – Pakistan published by the Central Intelligent Agency of the United States; and Country Information and Guidance Pakistan: Background information, including actors of protection, and internal relocation, June 2017 published by the United Kingdom government.  The Applicant offered no COI to contradict those relied on by the Board.  The Court was satisfied that the Board had adhered to a very high standard of fairness.

14.As for the Applicant’s education level, it is a fact that the Board could not change.  He had an interpreter to assist him at the oral hearing before the Board.  Having read the Decision, the Court was satisfied that the Board had given him adequate allowance for his language disability and the fact that he was acting in person.  The Board had made sure he understood the questions, had confirmed with him that the non-refoulement claim form, the statement and the record of the screening interview had read back to him and the truthfulness of the contents.  It appeared from the Decision that the Board fully understood his case.  The Court was satisfied that he was not prejudiced by his education level and language disability.

15.Insofar as the Applicant’s criticism of the Board’s findings of facts or weighting to be given to the COI are concerned, it should be noted that function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5]. Thus, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

16.An applicant has to prove not only that his fears and risks are genuine, but also they fall within the criteria set out under the four applicable grounds.   On the basis of his evidence, the Board was not satisfied that the Applicant has proved his fears and risks are genuine and that those fears and risks fall within the criteria.  It found that the Applicant had failed to discharge the burden of proving his fears and risks and his entitlement to non-refoulement protection on all applicable grounds.   The Board gave reasons for its Decision.   These are findings of facts which are 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.

17.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the burden of proof and standard of proof, 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 Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success. 

Conclusion

18.For the above reasons, the Court granted leave to amend the Applicant’s application by substituting the date of the decision sought to be reviewed by “11 October 2018” and refused his application for leave to apply for judicial review.

Dated the 25^th day of June 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)