Khan Babar v. Torture Claims Appeal Board / Non Refoulement Claims Petiton Office

HCAL 266/2019

[2021] HKCFI 3281

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 266 of 2019

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Suffiad:

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 of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the Applicant’s claim for non-refoulement protection.

2.The Applicant, a male born in 1996, is a national of Pakistan. He left Pakistan in March 2015 for China, then came into Hong Kong by boat illegally from China in about March/April 2015 and made a claim for non-refoulement protection on 2 April 2015 by way of written representation.

3.Initially the Applicant was represented and assisted by the Duty Lawyer Service in completing his Non-refoulement Claim Form (“NCF”) dated 10 August 2017 and at his interview with Immigration Department on 30 August 2017. In the written statement attached to his NCF the Applicant claimed that he feared ill treatment from members of the Taliban since his father had received a call in September / October 2014 from a person claiming to be a leader of the Taliban and demanding his father to attend a meeting which his father refused. Thereupon the caller had made threats to his father.

4.By a Notice of Decision dated 11 September 2017, the Director rejected the Applicant’s claim for non-refoulement protection.

5.The Applicant appealed against the Director’s decision to the Board and attended a hearing on 19 October 2018 before the Board, appearing in person.

6.The Board gave its decision on 16 January 2019 when it rejected the Applicant’s appeal and confirmed the decision of the Director.

7.The Applicant now wishes to apply for leave for judicial review against the Board’s decision.

Applicant’s case

8.The Applicant is from Hazara Colony, Rawalpindi in the Punjab, Pakistan. He was born in 1996, is single and has no children. He has had 7 years education and worked from 2010 to 2015 in his family’s auto parts business.

9.In September / October  2014, the Applicant’s father received a call from a person claiming to be a leader of the Taliban demanding his father to attend a meeting at the Pakistan / Afganistan border. His father refused such demand and the caller threatened his father for making a bad choice.

10.The Applicant claimed that his uncle had previously received similar calls and when his uncle met these people, they demanded huge sums of money which his uncle paid.

11.Some time later, the Applicant’s father received another call demanding payment of 2.5 million Pakistani rupees (equivalent of HKD 147,000). The caller further threatened that if his father did not comply with the demand he must send his sons to join the holy war. His father refused the demand.  The matter was not reported to the police as it was a known fact that the police were not able to deal with the Taliban.

12.About 1 to 2 months later, the Applicant’s motorbike was stopped at traffic lights when three persons alighted from a rickshaw to attack him with their hands and sticks. He suffered some lacerations and was treated at a local hospital. This was reported to the police but he could not identify his attackers.

13.When the Applicant told his father about the attack, his father sent him to live with an uncle in Peshawar, and sent his other brother elsewhere in Pakistan to hide. Later his father decided that both sons should leave Pakistan. The Applicant stayed with different friends in Rawalpindi before leaving Pakistan in March 2015 and his brother went to Saudi Arabia.

14.When he contacted his father, the Applicant was told by his father that it was still unsafe for him to return home.

15.At the interview with the Immigration Department, the Applicant stated that he had no problems when staying in Peshawar and in Rawalpindi before leaving Pakistan.

Director’s decision

16.The director had assessed the Applicant’s claim on all available grounds of non-refoulement protection under the unified screening mechanism (“USM”) including torture risk under Part VIIC of the Immigration Ordinance, BOR 2 risk under Article 2 of the Hong Kong Bill of Rights Ordinance, BOR 3 risk under Article 3 of the Hong Kong Bill of Rights Ordinance and persecution risk under Article 33 of the 1951 Convention relating to Status of Refugees.

17.The Director found that:

(a)   There was no evidence to show that the ill-treatment done to the Applicant attained the minimum level of severity;

(b)   The threats were made with the intention to extort money rather than with any intention to harm or kill the Applicant;

(c)   The true identities of the culprits were unknown and it was only based on hearsay that they were Talibans;

(d)   There was nothing to show that the culprits were in any way connected with the government;

(e)   State protection and internal relocation to be available to the Applicant based on the Country of Origin Information (“COI”);

18.Based on the above findings of fact, the Direction did not accept that there are substantial grounds for believing that the Applicant will be subject to torture risk, BOR 2 and/or BOR 3 risk or persecution risk if returned to Pakistan. The Director therefore rejected the Applicant’s claim for non-refoulement protection.

The Board’s decision

19.The Applicant attended the hearing before the Board on 19 October 2018 appearing in person. He gave evidence before the Board.

20.At the hearing before the Board, the Applicant gave evidence that the callers had murdered a man in the market who did not agree to their demands. Initially he claimed that the murder happened in front of him but later changed to say that he was at home when the man was killed in the market.

21.After hearing the evidence of the Applicant, the Board found that the claims made by the Applicant were very general and that the Applicant was unable to provide any coherent details about the matters claimed. The Board did not accept that any of the Applicant’s claims provide a credible basis for finding that the Applicant’s father was being seriously threatened by the Taliban.

22.The Board further found that the Applicant’s claim that the three men who had attacked him were Taliban members seeking to punish him for his father’s failure to meet their demands was not credible. The Applicant could give no valid basis for thinking that the attackers were Taliban other than that he had no enemies.

23.Accordingly, the Board found that the Applicant has not established that there are substantial grounds for concluding that there are any real risk that he would suffer ill treatment of the kind covered in all the applicable grounds under the USM whether by the Taliban or anyone else.

24.For completeness sake, the Board further found that the Applicant would have no problem relocating to other parts of Pakistan as was shown by his stay in Peshawar and Rawalpindi before he departed Pakistan.

25.For these reasons, the Board rejected the Applicant’s appeal and confirmed the decision of the Director.

Discussion

26.The relevant principles on appeals in non-refoulement cases have been comprehensively set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. 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 and COI materials, 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.

27.When the Applicant pursued his appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore while the court examines the decision of the Director and the Board, it is unnecessary to delve inti the decision of the Director. This decision will only focus on discussing the Board’s decision.

28.In the present case, the Board did not take issue with the personal and family background of the Applicant accepting them as true. The Board however had difficulty in accepting the credibility of the Applicant in relation to the claimed circumstances leading to his alleged fears of being harmed or killed if returned to Pakistan. The Board further found that, if necessary, internal relocation to be available to the Applicant.

29.The findings of fact by the Board on the facts of the case are primarily matters well within the province of the Board.

30.The present complaint raised by the Applicant in his Form 86 contains nothing to indicate any error of law, procedural unfairness or irrationality in the decision of the Board. The fact that the Applicant still claims that he is at risk of being harmed or killed if returned to Pakistan is neither here nor there.

31.Having gone through the decision of the Board carefully and thoroughly, it can be seen that the Board has considered all four available grounds on which this non-refoulement claim is brought and has dealt with the merits of each limb separately and individually.

32.The decision reached by the Board cannot be said to be unreasonable in any way. Nor can the court see any error of law, procedural unfairness or irrationality in the decision of the Board. There is no reasonably arguable basis to challenge the findings of the Board.

33.For the reasons given, there are no prospect of success in the Applicant’s intended application. Accordingly, the court refused to grant leave for judicial review.

Dated the 11^th day of November 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