Akhtar Naeem v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 449/2019 on BabelCite. This High Court CFI judgment.
1. This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 28 February 2018 (the “Notice”) and the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 12 February 2019 (the “Decision”).
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HCAL 449/2019 [2022] HKCFI 1449 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 449 of 2019
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 by Form 86 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 28 February 2018 (the “Notice”) and the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 12 February 2019 (the “Decision”). 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[1] and the Applicant has invoked those procedures. The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[2]. 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, now aged 40. He entered Hong Kong on 7 February 2016 illegally and was arrested by the police on the same day. On 9 February 2016, he raised a non-refoulement claim. 4.In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. By his Notice dated 28 February 2018, the Director rejected the Applicant’s claims under all four applicable grounds. 5.The Applicant appealed to the Board against the decision of the Director in the Notice. By its Decision dated 12 February 2019, the Board dismissed his appeal. On 18 February 2019, the Applicant applied for leave to apply for judicial review of that Decision. He did not request 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. The Applicant’s case 6.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims that he will be harmed or killed by supporters of a rival political party, Pakistan Muslim League (N) (“PML(N)”). 7.The Applicant was born and raised in Punjab, Pakistan. He received 10 years of education and has worked as a property dealer, a packing worker and a salesman. He and his family members became supporters of Pakistan Tehreek-e-Insaf political party (“PTI”) in 2012. He participated in PTI campaigns, including putting up posters, waving banners and chanting slogans in his village. 8.PML(N) won the national election in around May 2013. On 7 June 2013, the Applicant met around 8 to 10 PML(N) supporters, including the leaders in the locality (Shoqat and Shabi). They made fun of the Applicant for his support for PTI. The Applicant retorted. A fight ensured. The Applicant sustained bruises over his body and his left thumb was dislocated. The Applicant went to a police station to make a report but the officers refused to register a complaint when they heard that the PML(N) was involved. He believes that was because the police were subject to the influence of PML(N) as the ruling political party. 9.After the incident, whenever the Applicant went into Shoqat and Shabir they threatened to kill him if he remained in the locality. 10.Around 10 to 12 days after his recovery, while riding on a motorbike the Applicant was intercepted by 6 to 7 people associated with Shoqat and Shabir. They stopped his vehicle and told him they have already warned him not to remain in the locality. They threatened to kill him if they saw him again. The Applicant fled and remained in his home as much as possible over the next month. 11.In August 2013, the Applicant went into the associates of Shoqat and Shabir again. They pointed pistols at him and one of them fired a shot into the air. They told him that was the final warning and he must leave, or he would be killed 12.The Applicant fled to Lahore. He called his parents and learnt that Shoqat’s and Shabir’s associates had not come to their house to harass them but his friend Kashif told him that those people had asked Kashif for his whereabouts. 13.Around December 2014, the Applicant saw Shoqat’s brother in Lahore. Shoqat’s brother pursued him but he managed to escape. About a few days later, Shoqat, Shabir and their people intercepted the Applicant while he was traveling to work. They were armed with pistols and beat him. The Applicant went to a clinic where he stayed for 3 to 4 hours. Then, he went to a police station to make a complaint against Shoqat and Shabi. The police only wrote down what he said but did not issue a formal First Incident Report (“FIR”) to him. 14.Two days later, Kashif informed the Applicant that Shoqat and Shabir learnt of his complaint to the police and were on their way to kill him. The Applicant sought help from Kashif’s friend Imran. He then lived with Imran and worked in his computer shop. Around February 2015, Imran asked him to leave as Imran was afraid that the Applicant would bring him trouble. Imran recommended him to go to China. 15.The Applicant went to Dubai in November 2015 because he heard it would be easier to work in Dubai in order to save enough money for his trip to China. He stayed with Imran’s friend Safdar in Dubai. One day, he happened to meet a relative of Shoqat in Dubai. Kashif informed him that Shoqat knew his whereabouts and would not let him find any job in Dubai. Thus, the Applicant returned to Pakistan on 17 December 2015. Through Imran’s arrangement, the Applicant flew from Lahore to Guangzhou. From there the Applicant went to Shenzhen and then sneaked into Hong Kong by boat in early February 2016. The finding of the Board 16.The Board found that parts of the Applicant’s claims were not credible. It accepted that the Applicant was an active member of the PTI and that he might at one point in time switched allegiance from PML(N)[7] to PTI. It was also prepared to accept that he was confronted by Shoqat, Shabir and their associates in June 2014 and was threatened by some of them about a week later and again in August 2014. 17.However, because of the inconsistencies in his evidence, the Board did not accept that he was beaten up in August 2014[8]. It found that he had “fabricated” his claims about being attacked in Lahore[9]. It also did not accept his claim that he travelled to Dubai to avoid Shoqat and Shabir. The Board found his travel history was inconsistent with his story that he decided to come to Hong Kong only after he had reached China or that he had been in financial difficulty. The Board found that his actions did not appear to be consistent with those of a person genuinely seeking to flee Pakistan. It found he had not disclosed the true purpose for his visit to Dubai. 18.Notwithstanding the issues with the Applicant’s credibility and reliability, the Board was prepared to accept that he may face some threats of harm at the hands of Shoqat, Shabir and their associates if he returns to Habibabad, Pakistan in the reasonably foreseeable future. However, those risks could be mitigated by the availability of state protection and viability of internal relocation, given that PTI had defeated the PML(N) in the 2018 election at the national level and became the ruling party. That would ease the Applicant’s worry that he could not obtain police protection against PML(N) and that PML(N) could locate him and harm him throughout the country. 19.Applying the law applicable to the four grounds under the USM, the Board was not satisfied that the Applicant had discharged the burden of proving the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM and dismissed his appeal. The applicable legal principle 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[10]. Grounds for judicial review 21.The Applicant did not state his grounds for judicial review in the Form 86. The grounds of his application as stated in his supporting affirmation are as follows:
22.In essence, the Applicant’s complaint is that he disagrees with the outcome of the Decision because the Board did not take into account the threat to his life if he returns to Pakistan. He is therefore disputing the finding of fact by the Board. He also complains that the Decision is unfair. He did not advance any reasons or argument as to what is wrong with the Decision, what is the unfairness complained of and why the Decision is unfair. 23.He had been invited by the Court via its letter dated 15 December 2021 to advise the Court of his first language and his telephone contact number and to file submissions. He only replied that his first language is Urdu and gave his contact number. He did not file any submission because he claimed he had “submitted my all concern document of my case to the Honourable Court & Director of Immigration and TCAB”. 24.Absent any particular grounds for application, the court could only focus on errors of law, procedural unfairness or irrationality in the Decision. Discussion and conclusion 25.This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review. As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The Court in a judicial review will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or irrationality. 26.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 accepted the centre piece of the Applicant’s case. But even on that evidence, it found he had failed to prove the factual basis to support his case. Further, the risk of harm, even if it existed, could be prevented avoided by state protection or avoided by internal relocation. It was on these basis that the Board found that he had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The 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 proposed judicial review has no realistic prospect of success. 27.For the above reasons, the Applicant’s application for leave to apply for judicial review is refused. Dated 18th day of May 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] Section 37ZR of the Immigration Ordinance, Cap. 115 [3] 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 [4] 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”) [5] 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 [6] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [7] This claim was raised in the Board’s hearing, see [89] of the Board’s Decision [8] That probably occurred in August 2013: see [103] of the Board’s Decision [9] [104] of the Board’s Decision [10] [2018] HKCA 524 at para 14(1) |
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