Abbas Sikandar v. Torture Claims Appeal Board/ Non-refoulemnt Claims Petition Office

HCAL 2740/2018

[2021] HKCFI 1967

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2740 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 Director of Immigration (the “Director”) in his Notice of Decision dated 28 March 2018 (the “Notice”) and the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 22 November 2018 (the “Decision”).

2.The Decision of the Board is reviewable by judicial process but not the decisions of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. For the benefit of the Applicant, the Court treated his complaints against the Director as directed at the Board also.

3.The Applicant is a Pakistani national.  He surrendered to the Immigration Department on 5 April 2016 alleging that he had entered Hong Kong illegally on 25 November 2015.  He made a defective non-refoulement claim by written signification dated 4 May 2016.  Subsequently, he completed a non-refoulement claim form (“NCF”) on 27 February 2018 claiming that he will be harmed or killed by people from Shia Muslim because he is a Sunni Muslim.

4.In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4] and BOR 2 Risk[5].  By the Notice dated 28 March 2018, the Director rejected his claims.  His appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision dated 22 November 2018.  He sought leave to apply for judicial review of the Board’s Decision.

The Applicant’s case

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

6.The Applicant and his whole family are Sunni Muslims living in Village Lala Musa in Punjab.  The relationship between Sunni Muslims and Shia Muslims in his home village used to be fine. 

7.One day in September 2015, while he was attending a Sunnis gathering in the street, around 40 to 50 Shia Muslims arrived, including Fazal and Karim who had connections with gangsters and criminals as well as police in his village.  The Shias were armed with guns and sticks.  They told the Sunnis to stop their gathering at once.  The Sunnis refused.  An argument followed and a fight ensued.  The Applicant was hit by wooden stick and fell unconscious at the scene.  The Applicant was taken to hospital and hospitalised for 3 to 4 days.  The Sunnis made a report to the police station but the police refused to entertain their complaint.

8.Then the Sunnis organised a strike against the police and the Shias.  About an hour or two after the strike started, the police and Shias arrived.  They were holding wooden sticks in their hands.  All of a sudden, the police and Shias attacked the Sunnis demonstrators.  The Applicant managed to escape unharmed.

9.The next morning, Fazal and Karim and a group of Shias came to the Applicant’s home and asked for the Applicant.  The Applicant’s mother told the group that the Applicant was not at home.  The group then threatened to kill him if they see him.  Because of the threat, the Applicant decided to flee and escaped from the back door.  He flew to China on 19 November 2015.  On 25 November 2015, he sneaked into Hong Kong from Shenzhen by boat.

10.While in Hong Kong, the Applicant was told by his family that the Shias were still looking for him. The Applicant said that internal relocation is not a possible option because his enemies had connections with gangsters and police and could locate him anywhere in Pakistan.

The finding of the Board

11.The Board found significant discrepancies between the Applicant’s evidence in the NCF and that at the oral hearing before the Board which undermined his credibility.  He was inconsistent about the number of strikers before the police station, whether Fazal and Karim looked for him on the day of the strike or the following morning, whether he went to his friend’s place after fleeing from home and even the transport he took to Karachi.  The Board rejected the Applicant’s explanation that he had problem with his memory.  The Board found he was not a witness of truth and rejected his evidence almost in its entirety.  The Board did not accept that he was involved in the strike; that the Shias were looking for him; that he fled his home to Karachi; and that he left Pakistan in fear of his safety.  The Board considered there is no real risk that he would face any of the proscribed forms of harm should he return to Pakistan.  Accordingly, he has failed to discharge the burden of proving his entitlement to non-refoulement protection under any of the four applicable grounds under the USM.

Grounds for judicial review

12.In his notice of application for leave to apply for judicial review (Form 86), the Applicant annexed a three-page statement of grounds of his application.  The statement contains a summary of his case, some statement of legal principles, his complaint that the immigration officer did not know the real situation in Pakistan as the officer had never visited his country; and his submission that he had standing to make the application as he has been aggrieved by the Director’s and the Board’s decisions.  In his supporting affirmation, he said he had reasons to challenge the Decision as it “failed to take into account many things and assues (sic)”.  But he did not elaborate what those reasons are or what the Board or the Director had failed to take into account.  Other than expressing his disagreement with the Decision, the statement and the affirmation contain no criticism of the Decision.  At the highest, these complaints are grounds for appeal against the findings of facts of the Board.

13.The role 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.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].  In the absence of specific grounds of appeal, this Court focussed its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

14.At the hearing on 22 June 2021, repeated attempts were made to ascertain from him any possible basis for judicial review of the Decision, such as procedural unfairness, unreasonableness or irrationality in the Decision.  The Applicant confirmed he had the services of an interpreter and was free to address the Board.  He confirmed that there was no unfairness; there was nothing else the Board should have taken into account.  The Applicant’s only complaint was that he thought the Decision was not fair and that the immigration officer or the Board refused his case.  He said he just wanted to request to be allowed to stay in Hong Kong.  

15.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 law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  It was on that basis that the Board found the Applicant was not a credible witness and did not believe his evidence.  As such there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks. 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.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

16.For the above reasons, leave to apply for judicial review was refused.

Dated the 6^th day of July 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] [2018] HKCA 549

[2] 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

[3] 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”)

[4] 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

[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[6] [2018] HKCA 524 at para 14(1)