Qasim Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1617/2021

[2022] HKCFI 621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1617 of 2021

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 the Applicant being absent 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 by Form 86 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 4 November 2021 (the “Decision”). 

2.The Applicant is a national of Pakistan.  He sneaked into Hong Kong in June 2019 and surrendered to the Immigration Department in June 2019.   However, he did not report back on 17 July 2019 as required.  He was subsequently arrested by the police on 8 June 2021.  He then applied for non-refoulement protection by filing a non-refoulement claim form (“NCF”) dated 20 July 2021.

3.In due course, his non-refoulement claims were 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].  By a Notice of Decision dated 10 August 2021, the Director of Immigration rejected his claims.  His appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision.  He now seeks leave to apply for judicial review of that Decision.   However, he did not state his grounds of application in his Form 86 or his supporting affirmation filed on 26 November 2021. 

4.The address given by the Applicant in Form 86 was Castle Peak Bay Immigration Centre.  On 13 December 2021, this Court wrote to remind him to inform the Court of his change of address and telephone number.  The letter was returned and marked “no such person”.

5.A hearing was scheduled for him on 20 January 2022.  After ascertaining his up-to-date address from the Immigration Department, the notice of hearing was sent to him at that address by post on 3 January 2022.  This Court also wrote to him on the same day giving him directions, inter alia, for filing his grounds for application and submission.  The notice of hearing and letter were returned and marked “moved”. The Applicant had moved twice without informing the Court of his change of address.  He has tobears the consequence occasioned by the ineffectiveness of the correspondence address provided by him: see Karamjit Singh[5]. The Applicant having twice made himself unreachable, the Court could only determine his application on paper in his absence.  As no grounds of application have been put forward by the Applicant, the Court could only determine his application on the basis of ordinary principles applicable to judicial reviews.

The Applicant’s case

6.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 harmed or even killed by his uncle because of a land dispute.

7.The Applicant is a national of Pakistan, now aged 42.  He said his grandfather owned 18 marla of land in Muhalla Illa Abad (the “Land”), which was to be divided equally among his father and his two uncles upon his grandfather’s death.  His father told him that his father had bought 6 marla of land about 1 kilometre away from the Land for his younger uncle, Liyaqat, in exchange for his younger uncle’s share of the Land to be inherited upon the grandfather’s death.  Prior to his grandfather’s death in around 2016, his grandfather transferred 12 marla of the Land to the Applicant and 6 marla of the Land to his elder uncle’s son, presumably none to younger uncle because of the exchange. 

8.One day in early 2018, his younger uncle demanded his share of the Land to be inherited from the grandfather.  An argument broke out between his younger uncle and his sons on the one part and his father on the other.  In the heat of the argument, his younger uncle threatened the Applicant and his father.

9.About three to four months later, the Applicant’s younger uncle, his three sons and four to five unknown men assaulted the Applicant and his father with sticks outside a mosque until some passers-by separated them.  The Applicant and his father were hospitalised for two days.  The Applicant sustained open wounds and resulted in scarring, including a 5 cm scar on his forehead and in his right inner elbow.

10.The Applicant and his father lodged a complaint to the city police station, but the officers were sceptical about their injuries and refused to take up the matter.  The Applicant believed that was because of his younger uncle’s connection with the Pakistan Muslim League (Nawaz).

11.In about June to July 2018, the Applicant’s father sent the Applicant to live with his maternal uncle about 30 kilometres away from Muhala Illa Abad.  One night in around October to November 2018, his younger uncle and four to five unknown men came to the maternal uncle’s house and asked for the Applicant.  They fired at the house.  The Applicant fled through the backdoor.  He went to his friend’s home at Gujeranwala City.

12.About two months later, the Applicant’s friend sent him to live in Lahore.  One day in around April 2019, some unknown men shot at the Applicant when he was on his way back to his home in Lahore.  The Applicant managed to escape unharmed. 

13.Fearing for his safety, the Applicant left Pakistan in May 2019.  He arrived in Hong Kong in June 2019. 

The finding of the Board

14.The Applicant gave evidence before the Board.  However, up to the stage when the Board sought explanation from him as to why he chose to live illegally in Hong Kong for about two years instead of promptly seeking non-refoulement protection, he refused to answer the Board’s question.  He said his story was contained within the hearing bundle and he did not want to say any thing more.  Despite he had been explained the consequence of adverse inference which may be drawn against him for his failure to answer the Board’s question, he steadfastly declined to answer. 

15.The Board considered the Applicant’s evidence vague and his refusal to engage in the hearing process indicative of his intention to prevent his claims from being tested by probative questions that may reveal his claims to be false.  The Board concluded that the centrepiece of the Applicant’s claims of fear on harm from his uncle on account of a land dispute to have been manufactured, unpersuasive and incredible.  It also found no evidence of a consistent pattern of gross flagrant or mass violations of human rights in Pakistan.  The Board therefore concluded that there is not a real risk that the Applicant will prospectively face any of the proscribed forms of harm should he be refouled to Pakistan.

The applicable legal principles          

16.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].

17.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 issues; the burden of proof and standard of proof; and correctly identified the issues.  The Board observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  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, unreasonableness and irrationality.  The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.

18.The Applicant has not advanced any grounds for application.  For the above reasons, the Court could not detect any reasonably arguable grounds.  The Court could find no realistic prospect of success in the proposed judicial review.  Accordingly, leave to apply for judicial review was refused.

Dated 18^th day of March 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] CACV 78/2018; [2018] HKCA 460

[6] [2018] HKCA 524 at [14(1)]