Shahzad Adnan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 253/2019

[2022] HKCFI 418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 253 of 2019

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 of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 22 January 2019 (the “Decision”).  The Applicant had not requested an oral hearing.  Having regard to the nature of the application, the evidence, the papers and all the circumstances, the Court considered it appropriate to determine the application on paper.

2.The Applicant sneaked into Hong Kong from the Mainland on 6 December 2007.  He made a torture claim under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degreading Treatment or Punishment on 22 December 2007.  He was arrested by the Police in relation to a criminal offence on 12 March 2012.  He was prosecuted, convicted and sentenced to 6 days’ imprisonment on 19 July 2012.  He was then referred to the Immigration Department after his discharge from prison and released on recognizance.

3.In due course, he attended a screening interview with the Immigration Department in January 2015.  His non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice dated 2 February 2015, the Director of Immigration (the “Director”) rejected his claim under the Torture Risk ground, BOR 3 ground and Perseuction Risk ground.  In a second notice dated 1 August 2017, the Director also rejected his claim under BOR 2 ground.  The Applicant appealed to the Board against the decisions in the two Notices.  His appeal was dismissed by the Board’s Decision dated 22 January 2019.  On 28 January 2019, he sought leave to apply for judicial review against the Decision. 

The Applicant’s case

4.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 case is that he would be at risk of harm in his country because of three fights he had with a fellow villager Riaz in 2006 which ended up in Riaz’s death.

5.The Applicant is Pakistani national born in 1979. He is now aged 42.  He came from a large family with seven brothers.

6.The first fight occurred on a day in April 2006.  Riaz teased the Applicant’s cousin Naushin by holding her hand in public while she was coming home from school.  Naushin shook off Riaz’s hand and went home.  Riaz did not follow her. 

7.After learning about the incident, the Applicant, his three brothers and three cousins located Riaz in a small park with five to six people.  An argument erupted and a fight ensued.  The fight lasted for about 10 minutes.  Everyone fled when police arrived.  Riaz and his friends suffered no injuries.  The Applicant’s cousin Umar sustained head injuries while the other family members suffered minor bodily injuries.  The Applicant was only punched in the face.  The Applicant, his brothers and cousins made a report to the police.  The police did not appear to take the case seriously as they made no arrest.  The Applicant believed that the police took no action because no bribe had been paid to them.

8.The second fight occurred in May 2006 about a month afterwards.  The Applicant and his two brothers looked for Riaz.  They found Riaz with his companions near his house.  They approached Riaz and attacked him with a stick.  Riaz fought back with a snooker stick.  The fight lasted for about five to six minutes.  The Applicant and his brothers fled when police arrived.  His brother Danial was arrested and was then released on bail.  The Applicant sustained injuries in his forearm.  He learned from his father that Riaz and his brothers had lodged a complaint of assault against the Applicant and his brothers. 

9.The third fight occurred in July or August 2006.  Naushin saw Riaz near a grocery shop.  The Applicant, two of his brothers and one of his cousins went to look for Riaz upon learning about his whereabouts.  This time Riaz was alone.  The Applicant’s group assaulted him with wooden sticks for about five to six minutes.  Riaz suffered suffered serious injuries.  The Applicant’s group fled when the police came.

10.The Applicant and his brothers fled to Lahore to stay with their maternal grandfather.  He learned from his parents that the police believed he was the main culprit in the attack and had been to his home trying to arrest him.

11.About a year after those fighting incidents, the Applicant left Pakistan for China on 24 November 2007 and then sneaked into Hong Kong.  While in Hong Kong, he was told that Riaz had been murdered by the Applicant’s brother Danial in 2013 and Danial had disappeared. 

12.The Applicant suspected Riaz’s brothers would look for him for revenge should he return to Pakistan.  He believed Riaz was a supporter of Chaudhry Wajahat Hussain who was a member of the Muslim League Q and a member of the National Assembly.  He suspected that with their connection with the Muslim League Q political party, Riaz’s brothers would be able to do anything.

13.At the hearing before the Board on 30 November 2018, the Applicant confirmed that he was still living with his brother Naghman in Hong Kong; that he did not keep in touch with his family members in Pakistan; that he was not told that his name was included in the police complaint regarding the murder of Riaz in 2013 and that he received no information about Riaz’s family being in touch with his family members.

The finding of the Board

14.The Board found the Applicant shifty and evasive.  He avoided answering questions by saying either he forgot or everything had been written down on paper.  That was also his attitude at the 2015 screening interview.  Some of his answers at the hearing are also inconsistent with his answers at the screening interview.  Despite his assertion and assurance at the 2015 screening interview that he had documents in support of his claim that he was the subject of complaint in two of the fights, no documents were produce before the Board after a lapse of one year.  The Board did not find the Applicant a credible witness and had serious doubts about the truthfulness of his account[5]. Even accepting there were the three fights, the Board noted that there was no evidence from the Applicant that Riaz’s family and friends ever looked for the Applicant and his family for reprisal attacks.  The Board concluded that the Applicant failed to establish on reasonable possibility a risk of harm on him from Riaz’s family or the police in his country, let alone a risk of torture[6].

15.The Applicant bears the burden of proving the facts in support of his claims under the four applicable grounds under the USM.  The centrepiece of his claim is the three fights, Riaz’s death and fear of reprisal.  Having found him not a truthful witness, the Applicant failed utterly in proving the factual basis, ie the fear of reprisal, to launch his claims for non-refoulement protection under the four applicable grounds. 

16.Accordingly, the Board found the Applicant was not qualified for non-refoulement protection under any of the applicable grounds under the USM and dismissed his appeal against the decisions of the Director in the two Notices of Decision.

Grounds for judicial review

17.In his affirmation filed in support of his application, the Applicant said he wanted to appeal the decision of the Immigration Department (which the Court took it to mean the Decision of the Board and the decisions of the Director in the two Notices of Decision) as he was not satisfied with the decisions and his life is still in danger.  He exhibited the Decision of the Board.  Obviously, he disagreed with those decisions, but he did not put forward any specific grounds in support of his intended application for judicial review.

18.Out of abundance of caution, the Court obtained the two Notices of Decision from the Director and perused them.   The Court also invited the Applicant by letter dated 28 May 2021 to file any submission he wishes to make in the hope that it will help the Court to understand his grounds for application.  He did not respond despite a lapse of seven months.

19.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.  

The applicable legal principles          

20.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[7].

21.Having rigorously examined the Director’s two Notices of Decision and the Board’s Decision with anxious scrutiny, 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 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 Notices.  It correctly identified the factual and legal issues involved in the claims.  The Applicant’s claims are founded on his fear of reprisal by Riaz’s family members and police arising from the three assaults and Riaz’s subsequent murder.  The Decision of the Board was based on its finding of the Applicant’s credibility.  The Board had carefully weighed the evidence and assessed his credibility, but found against him.  The Board found him incredible and did not accept his evidence about his fear of reprisal and his assertions of risks.  The Board found that his fear of reprisal 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.  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 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 Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

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

Dated 10^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 21 to 32 of the Decision

[6] Paragraph 33 of the Decision

[7] [2018] HKCA 524 at para 14(1)