Gull Waseem v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 550/2019

[2022] HKCFI 401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 550 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 the Applicant in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

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 (the “Decision”) of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 20 December 2018.  The Applicant did not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

2.The Applicant surrendered to the Immigration Department on 15 February 2016, claiming to have entered Hong Kong illegally on 6 February 2016.  He was released on recognizance on 30 March 2016.  He was arrested by the Police and referred to the Immigration Department on 18 September 2008. He lodged a non-refoulement claim by way of an undated letter which was received by the Immigration Department on 18 July 2016.

3.In due course, his non-refoulement claim was assessed on all four applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].

4.In his Notice of Decision dated 28 September 2017 (the “Notice”), the Director of Immigration (the “Director”) rejected his claim.  He appealed to the Board against the decision of the Director in the Notice.   His appeal was dismissed by the Board on 20 December 2018.  On 26 February 2019, he applied for leave to apply for judicial review of 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 non-refoulement claim form (“NCF”) prepared by him with assistance of the Duty Lawyer Service.

6.The Applicant is a Pakistani national, aged 49.  He received approximately ten years’ formal education.  He had 26 years’ working experience.  He is married with two sons and a daughter who are all living in Pakistan.

7.The Applicant starting supporting the Pakistan Tehreek-e-Insaf political party (“PTI”) in 2015 after his return from work in Dubai.  At the time, the Pakistan Muslim League (N) (“PMLN”) was the ruling party in Pakistan.  He was not able to join PTI as he did not meet the minimum recruitment requirement of being a holder of a bachelor’s degree.  Nevertheless, he started canvassing support for PTI in his neighbourhood after working hours almost every day on a voluntary basis, and often attended small rallies of PTI in the area.  He was asked by local leaders of PTI to address their rallies as they saw he was good at making speeches.

8.One night in early September 2015, the Applicant and three of his friends were approached by up to 10 unknown men, all armed with firearms.  They claimed they were members of PMLN. They demanded the Applicant and his friends to stop supporting PTI and join PMLN.  When the Applicant and his friends refused, the men assaulted them with the butts of their guns for 10 minutes, after which they left.  The Applicant suffered a cut at the top of his head and had swellings all over his body.  His friends sustained injuries to their heads, knees and hands.  They went to the hospital for treatment and was discharged on the same day.  Then, they went to file a complaint at the City Police Station concerning the assault.  They believed the police did not take any follow-up action.  The Applicant believed he was the main target of the assault since the PMLN assailants were jealous of his ability to convince the public by his speeches made on behalf of PTI.

9.In late September 2015, the Applicant was plying his occupation as a rickshaw driver, when suddenly three people intercepted him on the roadside.  Two of them were armed with firearms and the remaining one was holding a stick.  They told the Applicant to join the PMLN in the coming election.  When the Applicant refused, they assaulted him with their gun butts and sticks for about 20 minutes.  The Applicant received a heavy blow to his mouth and lost consciousness.  He woke up two to three hours later to find himself in a hospital with swellings all over his body and a broken tooth.  He was hospitalised for several weeks.  Four strangers visited him one night three to four days after his hospitalisation. They introduced themselves as PMLN members and threatened that if he did not switch to support PMLN, that would be his last warning.  Furthermore, they warned that they would treat his family in the same manner.  His friends reported the matter to the police.

10.After his discharge from hospital, the Applicant went to the police station to check what follow up action had been taken.  The police told him that they were trying to find those people.

11.Between October and mid-December 2015, the Applicant hid in different villages in Gujrat.  During that period, he was not troubled by PMLN people.

12.The Applicant departed from Pakistan on 31 January 2016 for Guangzhou and then sneaked into Hong Kong by boat on 6 February 2016.  He surrendered to the Immigration Department on 15 February 2016.  On 18 July 2016, he sought non-refoulement protection claiming his fear that he will be harmed or killed by PMLN members if he is returned to Pakistan.

13.At the hearing before the Board, the Applicant testified that he maintained contact with his wife and friends.  They informed him that after his departure the PMLN supporters continued to call at his home regularly and in the area generally to check whether he had returned and for his whereabouts.

14.According to the Country of Origin Information (“COI”), PTI won the election and became the ruling party in Pakistan.

The finding of the Board

15.The Board did not find the Applicant’s story inherently probable.  He was not even a member of PTI. All he had done according to his account was, over a period of a few months after his return from work in Dubai, he addressed some low-key local gatherings and encouraged people to support PTI rather than PMLN.  He was wholly unable to provide any explanation why PMLN supporters should have been so implacably determined to assault, harm and threaten him because of a few meeting he had addressed, or why they should have expended so much time and effort since his departure from Pakistan, checking at his home and in the area to see whether he had returned.  When asked if he could offer any explanation, he was visibly at a loss, saying only that he had nothing to add to what he had stated in his NCF.

16.The Applicant confirmed that during the two to three months while he was hiding in Gujrat, nothing eventful happened to him.  Yet, it was soon after this uneventful period that on 31 January 2015 he chose to depart from Pakistan.

17.The Board did not believe the Applicant had told the truth that he had been assaulted and threatened by PMLN supporters as he had asserted[5].

18.The Board nevertheless proceeded to assess his claims on the basis of his own account, which was not supported by any documentary evidence.  The Applicant said he suffered a cut in his head during the first assault and was beaten up badly resulting in swellings all over his body, a broken tooth and loss of consciousness during the second assault which required a few weeks’ hospitalisation.  Even giving his allegations full weight, the Board found the totality of the two assaults and injuries did not constitute “severe pain and suffering” stipulated in section 37U(1) of the Immigration Ordinance nor did the injuries attain the minimum level of severity required to constitute torture or cruel, inhuman, degrading treatment or punishment under BOR 3[6].

19.The Board further found that even taking the Applicant’s case at its highest, the facts recounted by him do not provide reasonable grounds to believe that, if he were henceforth refouled to Pakistan, he would be in danger of being tortured or otherwise seriously harmed; or that he would be in any danger of being unlawfully deprived of his life in breach of BOR 2; or that he would face a real risk that he would be subjected to torture or cruel, inhuman, degrading treatment or punishment contrary to BOR3; or that he would be persecuted[7].

20.Accordingly, the Board dismissed the Applicant’s appeal against the Decision of the Director in his Notice of Decision.

The applicable legal principles

21.The function 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 scrutinise 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[8]. 

Grounds for judicial review

22.In his affirmation filed in support of his application, the Applicant said he is not satisfied with the Decision of the Board and want to apply for judicial review.  He exhibited the Director’s Notice and the Decision of the Board, but he did not put forward any specific grounds in support of his intended application for judicial review.  He is obviously seeking to challenge the Board’s conclusion and finding of fact. 

23.In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to Pakistan.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Pakistan and that in any event state protection and internal relocation are viable options to prevent or avoid the risk.  

24.The Court was satisfied that the Board had correctly set out the four applicable grounds under the USM for claiming non-refoulement protection, had properly referred to and correctly applied the applicable legal principles, including  the standard of proof and burden of proof, and quoted relevant precedents in support.  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 decision in the Notice.  It correctly identified the factual and legal issues involved in the claims.  The Applicant’s claims are founded on the two assaults, the threats made during the assaults and later in the hospital during the Applicant’s hospitalisation.  The Board had carefully weighed the evidence and assessed the Applicant’s credibility, but found against him.  The Board found he had not told the whole truth.  This is a finding of fact solely within the province of the Board which the Board was entitled to make.  As the Applicant bears the burden of prove of his claims, such a finding is fatal.  For this reason alone, the Applicant had failed to discharge the burden of proving his claim under any of the four applicable grounds under the USM.   

25.Nevertheless, the Board took a step further and assessed the Applicant’s claims on the basis of his assertions.  Even taking his case at the highest, for reasons as summarized above the Board was not satisfied that the harm and injuries allegedly suffered by the Applicant could entitle him to protection under any of the four applicable grounds.  The Board had been utterly fair and reasonable.

26.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board’s conclusion was utterly without fault.  There were no errors of law, procedural unfairness, unreasonableness or irrationality in its Decision which could be regarded as procedurally unfair, Wednesbury unreasonable, or irrational.  The Applicant’s claim was not reasonably arguable.  There was no realistic prospect of success. Conclusion

27.For the above reasons, the Court refused the Applicant’s application for leave to apply for judicial review.

Dated 7^th day of February 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 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] Paragraphs 23 to 28 of the Decision

[6] Paragraph 20 of the Decision

[7] Paragraph 22 of the Decision

[8] [2018] HKCA 524 at para 14(1)