Shah Amir Hussain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1026/2019

[2022] HKCFI 1990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1026 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 by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated4 April 2019 (the “Decision”) affirming the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 3 August 2018 (the “Notice”).

2.The Applicant is a national of Pakistan, now aged 30.   He entered Hong Kong on 29 March 2015 illegally and surrendered to the authorities on 15 June 2016.  On 3 August 2016, he raised a non-refoulement claim.

3.In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  His claim under all four applicable grounds was dismissed by the decision of the Director in his Notice dated 3 August 2018.  He appealed against the Notice.  His appeal was dismissed by the Board’s Decision. 

4.On 15 April 2019, the Applicant applied for leave to apply for judicial review of that Decision of the Board.  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

5.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 claimed that, if refouled, he will be harmed by his neighbour Daud Shah (“Daud”) and his son Hashim Shah (“Hashim”) because of their land dispute.

6.The Applicant was born and raised in District Hari Pur, Pakistan.   He is single and his family resides in his home village.  He had received ten years of education and had about six years of work experience as a factory, farm and construction worker.

7.The Applicant and his siblings received about 30 kanals of land each from his late father.  His neighbours, Daud and Hashim, claimed that 10 kanals of the Applicant’s land (the “Land”) actually belonged to them.  They created troubles even before his father passed away.  Daud’s family were closely associated with the party Pakistan Muslim League (N) (or PML(N)) and had been occupying farmland belong to other people.

8.In around 2006, the Applicant was attacked twice by Daud who asked him to sign a document surrendering 10 kanals of the Land to him.  The Applicant refused.  One day in the winter of 2007, Daud and Hasim intercepted the Applicant while he was driving a tractor.  They asked him to sign a document to surrender the Land to them.  The Applicant refused.  They attacked him with a hammer and a machete. They also kicked him and punched him.  The Applicant suffered injuries to his forehead and his left arm was fractured.  The attack lasted about ten to twenty minutes and he lost consciousness.

9.While he was unconscious, Daud called for the police.  The Applicant was arrested and taken to a police station where he was falsely accused of having gone to Daud’s house and sexually insulted his family members.  The Applicant denied.  Two of the four police officers present attacked him twice with wooden sticks, iron rods and hammer.  Each of the attack lasted about ten to fifteen minutes.  The police officers asked him to sign a document surrendering the Land to Daud.  Fortunately, the Applicant’s uncle arrived in time and bailed him out.

10.The Applicant sought treatment in a local clinic where he was given an injection, some medicine and a plaster on his arm.  He did not dare make a police report.  He fled to Karachi after the medical treatment and hid in a guesthouse for two years.  Towards the end of 2009, he saw Daud’s followers at a distance in the market.  Then, he fled to Nawab Shah in Sindh, where he worked as a factory worker.  In 2009, he went to Greece to work as an illegal farm worker till around 2011 when he was repatriated to Pakistan.  He stayed in Nawab Shah in Sindh and worked as a construction worker.  At the end of 2013, he attempted to enter Italy via Libya, but was unsuccessful. 

11.In 2014, while he was waiting for his visa to go to Saudi Arabia, he learned that Daud kept coming to Nawab Shah to locate him.  On the suggestion of his friend, he went to Hong Kong to seek protection.

12.After arriving in Hong Kong and filing his non-refoulement claim, the Applicant was arrested in 12 April 2018 and later convicted of taking up illegal employment and using the identity card belonging to another person.

The finding of the Board

13.At the Applicant’s request by letter dated 10 March 2019, the Board determined his appeal without an oral hearing.  Seemingly, the Board made no assessment of the Applicant’s credibility and proceeded to assess his entitlement on the basis of the case as asserted by him and on credible Country of Origin Information (“COI”).

14.The Board conducted a comprehensive review of the COI.  It accepted the reports in some of the COI about inefficiency of the Pakistani police in maintaining law and order and corruption among the lower levels of the force.  It also accepted, as alleged by the Applicant, that it is difficult for those without political or financial influence to file a complaint, particularly if they seek to implicate someone more powerful in a crime.  However, the Board also found objective COI and news reporting that the government had taken steps to improve police effectiveness and police professionalism; and taking actions against corrupt officials and police officers.  In addition, there are independent avenues for complaint against police inaction and misconduct.  On balance, the Board was satisfied that in Pakistan, government officials and police officers are not immune from the law. It also accepted that the Pakistani court is effective in taking actions against human rights violation.  The Board concluded at paragraph 66 of its Decision that there is no report or evidence of any systemic practice that the Pakistani government would fail to discharge its duties or tolerate any unlawful and collusive behaviour committed by an individual, any government official and member of any political party.  

15.The Board found that the dispute between the Applicant and his neighbours was a private dispute; that the past injuries suffered by the Applicant were minor and did not attain the minimum level of severity.  It also found that state protection is available to the Applicant.  It was only because of his unfounded speculation that the Applicant’s chose not to seek help from the police and higher authorities in Pakistan.  These are finding of fact based on the Applicant’s own evidence.

16.Applying the law applicable to non-refoulement protection under the USM, the Board found the Applicant had failed to prove his entitlement to protection under any of the four applicable grounds under the USM.  Hence, it dismissed his appeal.

The legal principles applicable to judicial review

17.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[5].

Grounds for judicial review

18.The Applicant did not advance any grounds for judicial review in the Form 86 or in his supporting affirmation.  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 his home country.  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.  That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

Conclusion

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 assessed the Applicants’ claim on the basis of the case as he asserted but found on the basis of credible COI and its further finding of fact that he had failed to prove the factual basis to support of his claim.  It was on that basis that the Board found that he had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds.  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 Court could not detect any 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.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success. 

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

Dated 30^th day of June 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] [2018] HKCA 524 at para 14(1)