Dar Wasif Hussain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 2814/2018

[2022] HKCFI 416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2814 of 2018

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 2 October 2018 (the “Decision”).  In his Notice of Application for Leave to Apply for Judicial Review (Form 86), he mentioned another decision dated 18 January 2018.  Enquiries by this Court showed that the Board had not made any decision in relation to the Applicant bearing that date; but the Director of Immigration (the “Director”) had issued a notice of decision dated 10 January 2018 (the “Notice”) which was the subject matter of the Applicant’s appeal to the Board and which the Board dismissed via its Decision, now the subject matter of this application.  Presumably that is the decision referred to by the Applicant.

2.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  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also.  

3.The Applicant is a national of Pakistan.  He surrendered to the Immigration Department on 20 October 2015, claiming that he had sneaked into Hong Kong from the Mainland on 10 October 2015.  On 15 June 2016, he lodged a non-refoulement claim.  In due course, his claim was assessed on all four applicable grounds available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4] and BOR 2 Risk[5].  By the Notice dated 10 January 2018, the Director rejected his claims.  He appealed against the decision in the Notice.  His appeal was dismissed by the Board’s Decision.  He now seeks leave to apply for judicial review of that 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 if returned to his home country, he would be tortured by the police and harmed or even killed by Nadeem Khadium (“Nadeem”) and members of Pakistan Muslim League - Nawaz (“PML-N”) because he had deflected from PML-N to Muttahida Quami Movement (“MQM”).

5.The Applicant is now aged 41.  He had received 10 years’ formal education.  He was a taxi driver before he came to Hong Kong. He previously worked for PML-N, but he started to support MQM in 2009.  PML-N won the national election in 2013.  Since 2014, Nadeem, who is a member of the National Assembly representing the Applicant’s area, sent people to assault the Applicant.

6.In mid-2014, the Applicant was stopped by four or five PML-N people while driving in the city.  They beat him up and told him to stop supporting MQM or he would be killed.  The Applicant made a report to the police station, but the police refused to help him.

7.About a month later, the Applicant was stopped by three to four unknown policemen.  They took him to the police station and detained him for two days under the pretext that there were theft charges filed against him.  During his detention, he was assaulted every two to three hours by police officers.  Later, members of MQM bribed the police to secure his release on bail.  He sustained swelling and bruises.  He treated himself with pain killers.  He sought help from MQM but was told that the party could not help him to file a complaint against PML-N or the police because they had no connections with government.

8.Approximately two months later, the Applicant was again stopped by policemen in the city and taken to the police station.  He was detained for one day, during which he was again beaten by police officers.  The officers also threatened to torture him if he kept supporting MQM.  Out of fear, he promised not to support MQM.  He was then released.

9.Feeling he was in danger, the Applicant left home and went to stay in Chakwal alone.  One night, three to four unknown men entered his house and beat him up.  They gave him an ultimatum saying that they would kill him if he continued to support MQM.  The Applicant had swelling and bruising all over his body and admitted himself to the city hospital for two to three days.  The doctor gave him painkillers and bandaged his injuries.  A month later, he flew to Guangzhou, China where he stayed for six to seven months before coming to Hong Kong.

10.While in Hong Kong, the Applicant maintain contact with his family members and friends.  He was told that his enemies were still looking for him and that he should not return to Pakistan.

The finding of the Board

11.Notice of hearing before the Board on 25 July 2018 was sent to the Applicant’s last known address obtained from the Immigration Department after ascertaining that he was not incarcerated.  The Applicant did not attend the hearing.  On the same day, the Board wrote to the Applicant advising him to contact the Board and provide his reasons for his non-attendance within seven days.  He did not respond.

12.Other than finding he is a national of Pakistan, the Board did not accept his evidence.  The Board considered his evidence lacked the level of detail that may be expected from someone who has been involved in a political party for more than five years.  It found his evidence was so generalised as to be fanciful.  The Board considered it inherently improbable that for his low level of involvement and lack of holding any position in MQM, he would attract the attention of PML-N and Nadeem and be pursued by PML-N in his local area and in Chakwal.  The Board inferred from the fact that he could leave Pakistan using a genuine passport and via legal channels that he is not of interest to the Pakistani authorities arising from the influence of Nadeem and/or PML-N.  The fact that the Applicant’s family remained in the same area indicated that they are not at risk from Nadeem and/or PML-N further undermined the Applicant’s claims.  In short, the Applicant failed to prove the factual basis to support his non-refoulement claim.

Grounds for judicial review

13.The Applicant did not state his grounds of application in Form 86 or in his supporting affirmation.  He had been invited by my clerk by letter dated 18 May 2021 to advise the Court of his first language; whether he wished to have an oral hearing and to file submissions.  He only responded to the first two items and did not file any submission.

14.At the first hearing scheduled for him on 11 January 2021, he was asked to put forward his grounds of application.  He only repeated his case.  The hearing was adjourned to 20 January 2021 for him to seek legal advice and consider his grounds of application.

15.At the second hearing on 20 January 2021, the Applicant produced a written statement stating that he would like to request the Court to reconsider his case and allow him to stay in Hong Kong.  He repeated that his problem in Pakistan is not solved.  He said he would hold the Hong Kong government responsible if he faces any problem upon his return to Pakistan.  He was disputing the finding of fact by the Board.  None of these grounds were relevant in an application for leave to apply for judicial review.

16.The Applicant was explained that the role of the court in judicial review is not to re-assess the non-refoulement claims afresh and that the court would scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. The Court went over these three crucial issues with him.  He was unable to raise any error of law.  He had no complaint about unfairness in the proceedings before the Board or irrationality in the Decision.  Actually, he had not attended the hearing and had not responded to the Board’s letter inviting explanation for his absence.

17.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          

18.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].

19.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; correctly identified the issues and observed a very high standard of fairness.  The Board found the Applicant not credible and that his fear of torture by the police and harm by Nadeem and his PML-N members 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.  There are no such vitiating elements in the Decision.  The Applicant’s grounds are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

20.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] [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)