Muhammad Nasir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 257/2019 on BabelCite. This High Court CFI judgment.
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 12 June 2018 (the “Notice”) and the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 18 January 2019 (the “Decision”).
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HCAL 257/2019 [2022] HKCFI 278 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 257 of 2019 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge To:
Observations for the Applicant (Order by Deputy High Court Judge To): 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 12 June 2018 (the “Notice”) and the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 18 January 2019 (the “Decision”). 2.The Applicant had been to Hong Kong previously on two other occasions as early as 1993 under various false indentities. He last entered Hong Kong under the name of Muhammad Nasir and was permitted to remain as a visitor until 18 June 2003. He overstayed and was arrested by the police on 3 November 2009. Then he lodged a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. His claim was rejected on 9 May 2011 and his petition against the decision was also rejected on 7 September 2011. Then he made a non-refoulement claim by way of written representation dated 11 July 2013. He was arrested by police on 16 November 2017 for a criminal offence and served a sentence in Hei Ling Chau Correctional Institution. 3.In due course, his non-refoulement claims were assessed on the other three remaining applicable grounds under the Unified Screening Mechanism (the “USM”), namely: BOR 3 Risk[1]; Persecution Risk[2] and BOR 2 Risk[3], the dismissal of his torture claim in 2011 being final. These claims were rejected by the Director in his Notice of Decision dated 12 June 2018. His appeal against the decision of the Director was also dismissed by the Board in its Decision dated 18 January 2019. He now seeks leave to apply for judicial review of these decisions. 4.The Decision of the Board is reviewable by judicial process but not the decision 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[4]. For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also. The Applicant’s case 5.The following is a summary of the Applicant’s case mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with the assistance of the Duty Lawyer Service and other documents prepared by the Immigration Department as contained in the hearing bundle before the Board. In gist, his claim is based upon his fear that, if returned to Pakistan, he will be harmed or killed by companions of a man named Walait Khan (“WK”) because they wanted to stop him from pursuing a murder case against them. 6.The Applicant is Pakistani national born in 1967. He is now aged 54. His elder brother, Muneer Ahmed (“Muneer”), was a driver in the Pakistani army. His other brother, Nazir Ahmed (“Nazir”), was murdered in1993. 7.Muneer, their nephew and three cousins had been long-time supporters of Pakistan Muslim League (Nawaz) (“PML(N)”). Their cousin Muhammad Aslam (“Aslam”) was a member of PML(N) from 2000 to 2007 and one of the candidates in the election of administrator of the Karian Wala area in 2007. 8.In 1993, Aslam bought a piece of land in Jindar Kalan (the “Land”). However, WK and his men were also interested in the Land and wanted to get the Land from Aslam. WK and his men were supporters and members of the Pakistan People’s Party (“PPP”). 9.One morning in July 1993, while Aslam and the Applicant’s cousins were working on the Land, WK and about 15 others attacked them. Nazir and the Applicant’s cousin Mudassar Ahmed were killed. The Applicant was shot in his right upper arm and beaten up when he went to the Land to see what was happening. He fell unconscious. He was taken to hospital for treatment and was hospitalised for a month. 10.Some attackers were arrested on the same day and some others later. They were all charged with murder and prosecuted. 11.About two to three months after the attack, WK and his men threated the Applicant to drop the case against them. The Applicant reported to the police but the police did not register the claim. He believed the police was corrupt and would not take action unless he paid a bribe. 12.In October 1993, the Applicant left Pakistan and came to Hong Kong for his safety. 13.The Applicant returned to Pakistan in 1995 and stayed in Karachi for two to three months until his housemate told him that while he was out some people had visited and asked for him and intimated that they would kill him. Thus, the Applicant went to stay with his brother’s brother-in-law in Gujrat for five months. Then, he came to Hong Kong a second time. 14.The Applicant claimed that he was repatriated to Pakistan in 1997. He went back to farm in his village and to follow up with the murder case. He also claimed he stayed in Lala Musa and Karachi for most of the five years but not in his home village. He only sneaked back to his home village at night occasionally. 15.The murder trial lasted for about seven years in the Session Court in Gujrat. During the first three years, all the attackers were remanded in custody. WK died in 1995. His sons and nephew continued to threaten the Applicant and tried to force him to drop the murder case. In 1996, the attackers were released on bail. Except for the two who had absconded, the attackers were all acquitted in 2000. 16.Aslam appealed against the acquittal. Starting from about 2001, WK’s men threatened the Applicant to withdraw the appeal. The Applicant could not recall the number of times and exact dates of those threats. 17.In 2002, three of the attackers threatened to kill the Applicant and Muhammad Aslam, if they continued to pursue the appeal. Two months later, about four to five people shouted death threats outside the Applicant’s home and fired seven to eight shots into the air. Aslam reported the incident to the police, but police took no action. The Applicant claimed there were other incidents of threats and firing. He did not report to the police because he believed the police would do nothing. 18.In 2003, the Applicant was worried that WK’s men would eventually take his life. So he went to Hong Kong for the third time. 19.On 9 December 2007, the Applicant learned that Aslam was killed in a shooting incident and WK’s men occupied the Land. Muneer, his son and another cousin continued to pursue the appeal. WK’s men continued their verbal threats and firing shots into the air while Muneer and his cousin were on their way to court. 20.One night, someone fired shots outside Muneer’s home while Muneer was out. Muneer’s daughter was traumatised and died of heart attack. Muneer reported the incident to the police, but the police did not carry out proper investigation. 21.At the end of 2017, Muneer informed the Applicant that the High Court rejected the appeal. Despite that, WK’s men warned Muneer not to start another proceeding against them or they would kill him. Eventually Muneer and his cousins gave up. 22.The Applicant believes his life would be in danger if he returns to Pakistan, as he was the one who pursued the appeal and WK’s men had personal grudge against him. He believed that since WK was connected with the PPP, his men can locate him if he returns to Pakistan. 23.The above account differs in many respects from the Applicant’s evidence at the oral hearing. The finding of the Board 24.The Board devoted five and half pages discussing the Applicant’s evidence[5]. It identified numerous inconsistencies and contradictions between his evidence given in the NCF and his evidence at the oral hearing. It discussed the inherent improbability of the evidence. It pointed out the unsatisfactory demeanour of the Applicant when giving evidence before the Board and found him evasive and shifty. The Board also considered the evidence vague and lacking in particulars. It referred to the approach and legal principles applicable to assessment of a witness’ credibility, in particular the dicta of Brooke LJ in Karanakaran. It reminded itself that inconsistencies may not be fatal as there may be valid reasons for not telling the truth or exaggerating for he might have embroidered his story or changed it in an effort to bolster his claim. 25.In conclusion, the Board found the Applicant shifty, evasive and not telling the truth. The Board accepted the following facts:
Because of the Board’s doubts about the Applicant’s credibility, it did not accept his allegations that the three deaths and his injuries were related or linked to his story. The Board also accepted that three persons made allegations about the murder in the First Information Reports, but not the truth of the allegations therein which the Board considered were not substantiated. All other matters including the threats and attacks by WK and his group were not accepted. 26.The Applicant bears the burden of proving the facts in support of his claims. The centrepiece of his claim is the murder and the death threats from WK and his group. The Board having found him not a truthful witness and rejected the centrepiece of his case, the Applicant failed utterly in proving the factual basis of his feared harm and fear to launch his claims for non-refoulement protection. 27.However, the Board took a step further and assessed his claims, assuming his story were true. The Board found that the deaths and violence were the result of confrontation between two gangs and the disputes and matters relating thereto were and are confined to the Applicant’s local area. In particular, the Board did not find that WK’s group was so powerful and influential over the whole country of Pakistan. With these assumptions, the Board went on to assess the Applicant’s case under the remaining three applicable grounds. 28.The Board considered the disputes are no longer significant after a lapse of twenty years with WK and Aslam having deceased, the attackers having been acquitted and the appeal against their acquittal dismissed. The Applicant stayed safe for five years in Lala Musa and Karachi which were not far from his home village. The fact that he was able to leave Pakistan three times without problem suggests that WK’s group is not as powerful and influential as the Applicant asserted. Hence, the Board did not accept the Applicant’s claim that WK’s group will still track him down and kill him. 29.The Board found no evidence that the state was involved in, indifferent to or had provided any form of encouragement to WK’s group in threatening or causing any harm to the Applicant. It was only out of the Applicant’s own volition that he did not seek police protection or pursue his claim for protection at higher level. Having considered the Country of Origin Information (“COI”), the Board was satisfied that state protection is available to the Applicant. 30.The Board therefore did not accept that the Applicant would be faced with real chance of harm if returned to Pakistan; and even if he were, state protection is available to prevent the harm. Furthermore, the Board found there was no basis in his evidence that any public official or person acting in an official capacity would play any part in inflicting such harm or instigate or acquiesce in the perpetration of the same. 31.In respect of the BOR 3 Risk ground, by reason of the above finding, the Board found that Applicant was unable to prove to the very high standard required that the ill-treatment he would face, if refouled, would attain a minimum level of severity and that he would face a genuine and substantial risk of being subjected to such ill-treatment. 32.In respect of the BOR 2 Risk ground, for the same reasons, the Board did not accept that there are substantial grounds for believing that the Applicant will be subject to arbitrary deprivation of his life. There is also no claim that he has been sentenced or will be sentenced to death. There is no real risk of his absolute and non-derogable rights under BOR 2 being violated, if refouled. 33.In respect of Persecution Risk ground, the Applicant’s claim is based on a land dispute. He was unable to prove a well-founded fear of being persecuted for reasons specified under the 1951 Convention relating to the status of Refugees, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion (the “Convention reasons”) which is an essential element for establishing the claim. 34.For the above reasons, the Board dismissed the Applicant’s appeal against the Decision of the Director in the Notice of Decision. The legal principles applicable to judicial reviews 35.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]. Grounds for judicial review 36.The Applicant filed a very well written thirteen-page affirmation in English putting forward his submissions in support of his application. In the affirmation, he advanced the following five grounds for applying for leave to apply for judicial review:
37.To properly assess these grounds, it would be useful to note the Applicant’s background. He is now 54 years of age. He had received eight years’ formal education. He had been to Hong Kong on three separate occasions since 1993 and stayed for substantial period of time. In the past 28 years, he had been living in Hong Kong under different false identities for about 22 years. He must be very familiar with Hong Kong and have good connections and friends who could provide him with support and assistance. Ground (1) - Lack of language assistance 38.As a matter of law, a claimant does not have absolute right to free language assistance at all stages of the proceedings. In Karamjit Singh[7], the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, he has to live with or cope with his language disability. He cannot expect to have the luxury to have any documents translated into his first language for his benefit as and when he requires. He has to find assistance himself from among his friends and his ethnic community. 39.The Applicant complained that he was not provided with language assistance in completing the notice of appeal against the Director’s Notice, in understanding the hearing bundle and the Decision of the Board. He emphasised the fact that he is illiterate. 40.However, the Applicant accepted that the hearing bundle is basically made up of his NCF, the record of his screening interview, and the Director’s Notice of Decision with the COI. He knew what is contained in his NCF which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service. He knew what is contained in the record of screening interview which he attended with the assistance of interpreter and legal representation. The record had been read back to him in his own language and he signed to acknowledge that he understood and agreed with its contents and that no amendment was necessary. Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips. When these facts were pointed out to him at the hearing, the Applicant agreed he had no problem understanding the NCF and the record of his screening interview. 41.The Notice and COI are in English and unfortunately have not been translated. He complained that the evidence therein was not read back to him to refresh his memory. As mentioned above, he has to find assistance himself from among his friends and his ethnic community. The Notice was issued on 12 June 2018. The oral hearing was conducted on 27 December 2018. In between, he had more than six months to find out what the hearing bundle was about, if he was at all serious in pursuing his non-refoulement claim. He should not do nothing and expect the host country would translate the documents to him as and when he requires as if the host country were head-hunting for people of his expertise. The Applicant also accepted he had no problem understanding the COI with the assistance from his friend. 42.The Applicant complained that he was not given language assistance in understanding the Decision of the Board. That argument is groundless. Whether he understood the reasons for the Decision, the Decision was already made. Language assistance could not reverse the Decision. It is accepted that his understanding of the Decision would enable him to present his application for judicial review. He had in between the date of the Decision and the date of this hearing three years to seek assistance from his friends and ethnic community in preparing for his application. For the same reasons as given above, there is no substance in this complaint. 43.The Applicant had the benefit of the services of a qualified interpreter at the hearing before the Board. Taking a global view of the circumstances, nothing amiss arose from the lack of language assistance at any stage of the non-refoulement proceedings. The Applicant’s complaint is over-exaggerated. Ground (2) – lack of legal assistance 44.In Zafar Muazam[8], Re Zunariyah[9], Re Zahid Abbas[10], Re Tariq Farhan[11], and Re Lopchan Subash[12], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[13] nor the judgment of FB v. Director of Immigration[14] 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. The real question is whether the claimant is prejudiced for want of legal assistance. 45.The Applicant agreed with the above proposition of the law and accepted that this ground is not substantiated. He accepted that he had the benefit of legal advice in preparing the NCF and legal representation in presenting his case to the Director at the screening interview. All the benefits that legal representation could have provided him were contained in written submissions, NCF and answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. Though he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have provided him were before the Board. When these were pointed out to him at the hearing, the Applicant agreed. 46.Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board. Ground (3) – Bias and templet decision 47.The Applicant gave no particulars of his assertion of bias and templet decision. At the hearing, he explained that by “bias” he meant the Decision was not reached at arms-length in that he is illiterate, he had no legal assistance or assistance from the Board. Reading the Decision, I am unable to find any suggestion that the Board had not given him any assistance which a decision maker acting in an official capacity would be expected to give to an unrepresented claimant. In view of the reasons given in relation to his complaints under Grounds (2) and (3), his complaint about bias is unsubstantiated. 48.As for the complaint about “templet decision”, the Applicant asserted in his affirmation that his problems in Pakistan still remain and it will not be safe for him to return. He complained that the Decision to refoule was nothing but bias and lacks “completeness and evidence”, that the Board did not address the issues properly and just came up with an assessment on more or less of a templet basis. He did not identify the issues complained of. He gave the immigration officer’s finding that his fear was not well-founded and that he could relocate to another area of Pakistan as the only example of a templet decision. At the hearing, the Applicant said that he believes his case was not understood and that he might have misunderstood the case by reason of his illiteracy. He withdrew this complaint. For reasons as given below, the Court was satisfied that the Board had correctly identified the issues, considered the evidence and gave reasons for its finding. There is no substance in this ground. Ground (4) – Undue weighting given to COI 49.The Applicant complained that the Director and the Board were selective in giving weight to different parts of a COI leading to an unfavourable finding against him. The entire paragraph 25 of his affirmation was about threats by Taliban militants which never surfaced in his non-refoulement claim. His claim is based on threats from WK and his group. Obviously, he or whoever prepared the submission for him copied it from some other cases based on facts which have no bearing to the facts in issue in the Applicant’s case. 50.The COI relied on by the Director and the Board are all from credible and official sources, including Country Report on Human Rights Practices for 2017 published by the United States Department of State; The World Factbook - Pakistan, published by United States Central Intelligence Agency; Country Policy and Information Note – Pakistan: Background information, including actors of protection, and internal relocation issued on 26 June 2017 published by the United Kingdom Government; and other news reports and articles. 51.Putting aside the irrelevant reference to Taliban militants, the essence of the Applicant’s complaint is about the weighting put on different parts of the COI and that the Board was cherry-picking. The weight to be given to a COI or parts of it depends on the facts of the individual case. This is basically a finding of fact which is solely within the province of the Board as the tribunal of fact. In any event, in view of its finding that the Applicant does not face a real chance of harm of any kind for any of the reasons claimed, the Board’s finding on availability of state protection and internal relocation on the basis of the COI was unnecessary for its decision. Ground (5) – Unfair and illogical Decision 52.The essence of the Applicant’s complaint is that given all the evidence and documents given by him, the Decision was unfair. He relied on as evidence of unfairness and illogicality the Board’s comments in paragraphs 23 and 28 of the Decision about the Applicant’s failure in explaining why he did not make a claim for non-refoulement protection at the earliest possible opportunity after he first arrived in Hong Kong in 1993 or in subsequent arrivals. 53.This complaint is frivolous and groundless. Section 37ZD of the Immigration Ordinance expressly provides that an applicant’s failure to make a timely claim is one of the circumstances which the Director or the Board may take into account as damaging an applicant’s credibility. The Applicant first arrived Hong Kong in 15 November 1993 allegedly as a result of his fear. He was arrested and repatriated back to Pakistan on 22 June 1995. For 19 months, he made no complaint about his fear for his safety. A year and half later, he came to Hong Kong under a false identity on 30 December 1996. He was arrested and repatriated on 4 December 1997 after almost a year. Again, he made no request for protection. After staying for five and half years in Pakistan, he came to Hong Kong again on 11 June 2003 under another false identity. It was not until after he was arrested on 3 November 2009 six and a half years after his arrival that he first made a torture claim. He submitted that he was unaware of the non-refoulement protection in Hong Kong and the delay in making a claim does not mean his fear is not genuine. The Board had considered such argument in some length but rejected it. The Board gave reasons. Having regard to the duration of about 19 years he had stayed in Hong Kong over the past 26 years as at the oral hearing before the Board and all the surrounding circumstances, it was neither unreasonable nor irrational for the Board not to accept the Applicant was unaware of the availability of the protection. That is a finding of fact which the Board is entitled to make on the evidence and the Decision could not be criticized as unreasonable, illogical or irrational. 54.It is the Applicant’s duty to discharge the burden of proving his claims to non-refoulement protection. It is for the Applicant to show this Court his grounds for applying for judicial review. He only made a bare assertion of bias, lack of completeness and evidence and making templet decision. He gave no particulars. It is difficult to assess the merits of this ground. The Court could find nothing to suggest that the Decision is bias. 55.The Board had set out the applicable legal principles, the Applicant’s case and its reasons for its finding of fact in some details in its Decision covering twenty-two pages. The Applicant’s case and documents have been summarized in paragraphs 18 to 21 covering more than four pages. The main reasons of the Board’s finding of the Applicant’s credibility, facts and conclusion are contained in paragraphs 22 to 56 covering twelve pages. For reasons as discussed below, the Court was satisfied that on the available evidence that it was open to the Board to make the Decision as it did. The Decision cannot be labelled as a templet decision. Conclusion 56.Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds for application 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 quoted relevant precedents in support of its decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues involved in the claims. The Applicant’s claims are founded on his fear of harm by WK’s group. The Decision of the Board was based on its finding of the Applicant’s credibility and assessment of his risk of harm. The Board had carefully weighed the evidence and assessed his credibility. The Board found him incredible. As the Applicant bears the burden of proving his claims, such a finding is fatal. Even accepting his evidence, the Board further found that his fear of harm was not well-founded. It was on that basis that the Board found that there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. This conclusion was further supported by availability of internal relocation. 57.The Board’s Decision did satisfy the enhanced Wednesbury test. Its Decision was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding 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 Board observed a very high standard of fairness. Having considered his grounds for application, the Court was satisfied that the Applicant’s grounds are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. For the above reasons, leave to apply for judicial review was refused. Dated 25th day of January 2022.
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 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”) [2] 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 [3] 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] Paragraphs 27 to 35 of the Decision [6] [2018] HKCA 524 at para 14(1) [7] CACV 78/2018 [8] cacv 2/2018, (unreported) 23 March 2018 [13] (2004) 7 HKCFAR 187 [14] HCAL 51 of 2007 |
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