Raza Kashif v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2596/2018

[2022] HKCFI 2411

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2596 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:

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”) dated 12 October 2018 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 5 December 2017 (the “Notice”) refusing his application for non-refoulement protection.  The Director of Immigration was named as the proposed respondent, but no relief was sought against any of his decision whereas relief was sought against the Board’s Decision.

2.The Applicant is a national of Pakistan, now aged 28.   He surrendered to the authorities on 12 September 2016, claiming to have entered Hong Kong on 9 September 2016 illegally.  On 11 November 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]. By a Notice of Decision dated 5 December 2017, the Director rejected his claims under all four applicable grounds.

4.He appealed to the Board against the decision of the Director in the Notice.  By its Decision dated 12 October 2018, the Board dismissed his appeal.  On 19 November 2018, he applied for leave to apply for judicial review of the 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 he will be killed by supporters of the Pakistan Muslim League (N) (“PML(N)”) upon his return.

6.The Applicant was born in Rahim-Yarkham, Pakistan.  He had received five years of education and worked on his family farm for about 2 or 3 years.  He is single. His family used to reside in Pakistan.

7.The Applicant and his family were supporters of the Pakistan People’s party (“PPP”).  His family was the only family who supported PPP in the village.  After the PML(N) came to power, supporters of PML(N) started harassing PPP supporters and took their land by force.

8.On an unspecified day, a number of PML(N) supporters came to his home and claimed ownership of his family land. A fight broke out between the Applicant and the PML(N) supporters in the presence of other members of the Applicant’s family.  The Applicant filed a police report and the police asked him to go to a hospital.  It took him about one and half weeks to fully recover.

9.Later, the Applicant, his father and brothers were attacked by a group of 20 to 25 people with wooden sticks.  It took him two weeks to fully recover from this attack.  The Applicant claimed there was a third attack on him, although he could not remember the date.  He claimed that the PML(N) came into power in 2013 and PML(N) supporters took over the farmland completely in 2016.  The Applicant believed the attacks were ordered by a member of the Provincial Assembly of the PML(N), Chaudhary Shafique, because his son was present in all the attacks and Chaudhary Shafique was known to be very aggressive towards PPP supporters.

10.Neither the Applicant nor his family reported the second or third attacks to the police because they thought the police did not take any action after the Applicant had filed a police report for the first attack.  The Applicant’s father produced a land certificate issued by the Land Tribunal Court to support the Applicant’s complaint but the police told the Applicant and his father to leave.

11.The Applicant participated in a rally held by the PPP in 2016.  PML(N) supporters shot at the PPP supporters and the police intervened.  The Applicant was injured in the rally and his paternal cousin was killed.  His uncle filed a case for his son’s death against the PML(N) supporters and the Applicant went to court to testify.  While on his way to court, about 10 to 15 people attacked him with knives and demanded that he refrained from testifying.  He received a scar under his left eye and was taken to a hospital.  After his recovery, he fled to Hong Kong.

12.After arriving in Hong Kong, his family told him that the PML(N) people regularly told his family that the Applicant should never come back or he would be killed.  He also learnt that a false murder case had been filed against him and the police regularly looked for him in his home.

The finding of the Board

13.The Board found that there were “major inconsistencies” in the Applicant’s evidence but accepted that he had given a “true depiction” of prior events in Pakistan in his testimony before the Board.  The Board accepted that there was some tension between his family and PML(N) supporters and that there might have been a “land grab” attempt of his family land.  That matter was however resolved with the intervention by the local villagers and on his own account the Applicant was not harmed. 

14.Because of the inconsistencies between his evidence in his NCF and the initial written representation, the Board was not prepared to accept that the Applicant’s cousin had been killed or that he was attacked while he was on his way to testify against the persons responsible for his cousin’s death.  The Board also did not accept that he had been framed for murder or that he was of any interest to the Pakistani police.

15.Based on its factual findings, the Board held that any risk of harm to the Applicant to be low, “far-fetched and fanciful”.  Applying the law applicable to non-refoulement protection under the USM, the Board found the Applicant had failed to prove the factual basis to support his claim for protection under any of the four applicable grounds under the USM.  It therefore upheld the decision of the Director in the Notice and dismissed his appeal.

The legal principles applicable to judicial review

16.The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].  Thus, absent specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

17.The Applicant did not give any ground of application in his Form 86.  The only grounds put forward by him in his supporting affirmation is that the Decision is not fair, unreasonable, that his life is in danger and he might be killed if he returns to his home country.  In effect, he was disputing the finding of fact by the Board that he would not face any real harm or risk of harm be at risk of harm if refouled.  For reasons as explained in the above paragraph, that was a finding of fact solely within the province of the Board which the court in a judicial review will not interfere unless the Decision was reached as a result of error of law, procedural unfairness or was irrational.    

Discussion

18.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; and observed a very high standard of fairness.  The Board found the Applicant not credible and rejected his evidence about the death of his cousin and the attack on him while he was on his way to court to testify.  On the basis of the rest of the evidence accepted by the Board, it found that the risk of harm which the Applicant would face on his return to Pakistan to be low.  It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM.  This is a finding of fact solely 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 detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  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. 

Conclusion

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

Dated 8^th day of August 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)