Nadir Zeeshan v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office
Read the full judgment text of HCAL 2094/2018 on BabelCite. This High Court CFI judgment was delivered on 20 September 2022.
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 / the Non-Refoulement Claims Petition Office (the “Board”). He did not identify the decision by date, but in his supporting affirmation dated 6 September 2018, he exhibited a decision of the Board dated 6 July 2018 (the “Second Decision”) which dismissed his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Further
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HCAL 2094/2018 [2022] HKCFI 2858 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2094 of 2018
Application for Leave to Apply for Judicial Review Following:
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 / the Non-Refoulement Claims Petition Office (the “Board”). He did not identify the decision by date, but in his supporting affirmation dated 6 September 2018, he exhibited a decision of the Board dated 6 July 2018 (the “Second Decision”) which dismissed his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Further Decision dated 31 March 2017 (the “Second Notice”). Hence, it is clear that the Applicant’s intention is the seek judicial review of the Second Decision of the Board only and not also the First Decision of the Board mentioned in paragraph 3 below. The First Decision is now final. 2.The Applicant is a Pakistani national, now aged 37. He entered Hong Kong on 21 August 2009 illegally and was arrested on 23 August 2009. On 25 August 2009, he raised a torture claim which was later converted to a non-refoulement claim. 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]; and Persecution Risk[3]; BOR 2 Risk[4]. The Director rejected his claims under the first three grounds by his notice of decision dated 27 April 2015 (the “First Notice”). Then, the Director invited the Applicant to submit additional information, if any, which he considered relevant to his claims on all applicable grounds, specifically including BOR 2 Risk ground. The Applicant did not submit any information. Having reassessed his entitlement, the Director rejected his claim under BOR 2 Risk ground in his Second Notice. 3.The Applicant appealed to the Board against the two Notices. On 7 February 2017, the Board issued its decision dismissing his appeal against the First Notice (the “First Decision”). On 6 July 2018, the same Board dismissed his appeal against the Second Notice by its Second Decision. The Applicant now applied for leave to apply for judicial review of the Second Decision. He did not request for an oral hearing. Having considered the nature of the application and issues raised, the First Decision, the Second 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 4.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 would be harmed by his father’s cousin, Faisal Muhammad (“Faisal”), upon his refoulement to Pakistan. 5.The Applicant was born in Gujrat, Punjab of Pakistan. He is single and has completed secondary school education. He has four years of working experience as a welder. His grandfather owned two plots of land, which were inherited by the Applicant’s father and his father’s second eldest brother. 6.In April 2007, Faisal and his brother, Bashir Muhammad, attempted to claim the plot of land inherited by the Applicant’s father (the “Farmland”) by force. Faisal showed the Applicant’s father some forged documents and claimed that the Farmland belonged to him. His father contested that assertion by showing him the original documents of the Farmland. 7.According to the Applicant, Faisal was the son of his father’s paternal uncle. He lived close to the Applicant’s home. He is rich and had connection with politicians such as a Member of National Assembly. He used to switch allegiance to whichever political party was the ruling party. Faisal was arrested twice or thrice, including an arrest for murder. The Applicant did not know his occupation, except that he occupied land of other people, including the land owned by a distant relative of the Applicant. 8.In June 2007, the issue of the ownership of the Farmland was determined by the elders of both the Applicant’s father’s family and Faisal’s family in favour of the Applicant’s father. But Faisal refused to accept the decision. 9.One day in July 2007, Faisal went to the Farmland with four associates. They used foul language in threatening his father to leave. 10.In September 2007, Faisal and two men approached the Applicant and his father again. They verbally abused his father. The Applicant slapped Faisal’s face once. On the same night, Faisal went to the Applicant’s home with four or five men and fired shots in the air. Faisal shouted that he would not spare the Applicant. 11.On the next day, the Applicant fled to his maternal grandparents’ home in village Suk Kalan, Gujrat. When his parents visited him, they told him that Faisal and his father had a fight in November 2007. His father made a report to the police but the police did not take any action, because of Faisal’s influence over the police. 12.The Applicant stayed in his grandparents’ home for three months. Then he moved to stay with his friend, Sabit Ali, for two months. On 10 February 2008, while he was on his way to play in a cricket match, he was kidnapped by Faisal and his men and detained in a stable for four days. 13.On the first day, Faisal slapped the Applicant’s face four or five times and stabbed the back of his right hand with a knife. Then, Faisal and his associates used plyers to remove the nail of his right forefinger causing him great pain and he fainted. 14.On the second day, Faisal called the Applicant’s father in front of the Applicant and asked his father to sign documents to transfer the Farmland to Faisal. 15.On the third day, Faisal and his men hit the Applicant with wooden poles, punched his nose and used plyers to remove the nails of the middle and ring fingers of his right hand. They tortured him for about an hour and left him untied and semi-conscious. 16.In the morning of the fourth day, Faisal told the Applicant that he was going to take the Farmland and bury the Applicant there. The Applicant swore at him. In retaliation, Faisal used plyers to remove the nails of the little finger of his right hand and then the nail of the ring finger of his left hand. The Applicant fainted. Faisal came again at night and cut off the upper parts of four of the fingers of the Applicant’s right hand and then snipped the right finger of his left hand. The Applicant again fainted. When he came round, he found he was untied. Using his right shoulder, he dislodged a few bricks of the stable wall and escaped. He fainted again on the way. He was saved by four men and women who helped him contact his father. He was taken to a hospital. His father made two police reports at different police stations about the abduction. 17.The Applicant stayed at his home for one year to recover. His father and brothers kept going to the police station to follow up on the complaints but the police kept saying they were investigating. His family was convinced that the police would not do anything to help because Faisal and the police were friends. 18.One day in 2009, while walking to a public cricket pitch, Faisal and three or four unknown men appeared and shot in his direction. The Applicant fled and Faisal gave chase. He was not injured. After this incident, his parents arranged for his trip to Hong Kong. In mid-2012 when he was in Hong Kong, he learnt that Faisal continued to seek revenge on his parents and his family. Faisal was said to be responsible for the car accident in which a truck hit his brother Adnan while he was riding on a bicycle. Adnan was seriously injured but the police took no action against Faisal, even though a report had been made. The finding of the Board in its First Decision 19.The Applicant testified before the Board. The Board found significant inconsistencies among his evidence in his NCF, the screening interview and that given before the Board. The Applicant said that on the third day of his detention, he was convinced that Faisal intended to kill him. Yet, he made no attempt to escape despite he was left untied. But, he escaped on the fourth day when he was in a far worse condition. The Board also found it incredible that he could not remember the names of the people who saved him, gave him lodging and contacted his family for him. He assured the immigration officer that he had documents in support of his abduction. Despite more than a year lapsed, he was unable to procure any documents. 20.While he asserted that Faisal had been arrested two or three times for murder, his evidence was in fact that he was not even sure when he was so arrested. He alleged that Faisal got away by bribing the victim’s family. But he changed his evidence and said that Faisal did not bribe the family members but harassed them into coming to a settlement. He even pledged his credibility by saying that he saw everything as he was living there. 21.The Applicant alleged in his NCF that his brother was seriously injured by Faisal and his men in a traffic accident but no prosecution was mounted on them. That evidence is inconsistent with his evidence at the screening interview that the driver sent by Faisal was put in custody by the police in relation to this incident and with his evidence before the Board that the driver had been sentenced to two years’ imprisonment. 22.The Board found the Applicant incredible and his account inconsistent and inherently improbable. It rejected his evidence. The Board found he was not telling the truth about the alleged threats from Faisal and did not accept that he would face any real risk of harm upon his return to Pakistan. It held that there was no evidence of any state involvement in his alleged ill-treatment. It also found that his alleged dispute with Faisal was private in nature which had nothing to do with the reasons stated in 1951 Convention relating to the status of Refugees and its 1967 Protocol, ie on account of his race, religion, nationality, membership of a particular social group or political opinion. 23.Having rejected the Applicant’s evidence, the Board found the Applicant had failed to show even to the low standard of proof required that there are substantial grounds for believing he would be subjected to severe ill-treatment[5] or torture[6]; and that he has a well-founded fear that he will be subjected to persecution for a Convention reasons[7] upon his refoulement to Pakistan. 24.Furthermore, the Board held that Faisal is unlikely to spend time and resources to look for the Applicant as he had not lived in Pakistan since 2009. Given his age, education and work experience, the Board found it would not be unreasonable for him to relocate elsewhere in Pakistan to avoid the alleged threats from Faisal. 25.For all these reasons, the Board found the Applicant had failed to discharge the burden of proving the factual basis in support of his claim to non-refoulement protection under the Torture Risk, BOR 3 Risk and Persecution Risk grounds. It therefore dismissed his appeal. There was no further challenge of that decision, it is therefore final and binding on the Applicant. The finding of the Board in its Second Decision 26.In the Second Decision, the Board noted that there had been no new material proffered by the Applicant since the First Decision. The Board had regard to its finding of fact in the First Decision, particularly that the Applicant was not a credible witness; that he had failed to show there was a real risk that he would face ill-treatment that would attain the minimum level of severity and that he was a person of interest to the Pakistani government. 27.It also referred to credible country of origin information quoted by the Director in the First Notice. It accepted that there are recent and ongoing efforts by the Pakistani government in putting in place strategies and programmes to improve police efficiency and in fighting corruption. Applying the principle in Horvath v Secretary of State for the Home Department[8] to the above facts, it found that the Applicant had failed to show even on the low standard of proof required that state protection of a practical standard would not be available to him on his return to Pakistan. For all these reasons, it found that there was no evidence to show that the Applicant would be at risk of BOR 2 harm, if refouled. It therefore dismissed his appeal against the Director’s Second Notice. Legal principles applicable to judicial review 28.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[9]. Grounds for judicial review 29.The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, he only exhibited a copy of the Second Decision in respect of which he sought judicial review. He had been invited by the Court via its letter dated 15 October 2020 to advise the Court of his first language and to file submissions. He responded and confirmed he had no new documents to submit. He did not file any submissions. 30.In the absence of specific grounds of application, the Court in an application for judicial review 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 disagreed 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 31.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 incredible and rejected his account of harm and fear. On the basis of credible country of origin information, the Board was also satisfied that state protection and internal relocation are available to prevent or avoid the risk if it turned out to be real. The Board found the Applicant had failed to show even to the low standard of proof required that there are substantial grounds for believing he would be subjected to severe ill-treatment or torture; and that he has a well-founded fear that he will be subjected to persecution for a Convention reasons upon his refoulement to Pakistan. As the Applicant bears the burden of proving his claim to protection, albeit to a relatively low standard, such finding is fatal. This finding of fact under the First Decision is also final. On the basis of the above finding of fact and credible country of origin information, the Board found the Applicant would not face any BOR 2 Risk on his return to Pakistan. It was on that basis that the Board found that he had failed to prove his entitlement to non-refoulement protection under BOR 2 Risk grounds. This is a finding of fact which is 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. Dated the 20th day of September 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] Section (B) of the Decision [6] Section (C) of the Decision [7] Section (A) of the Decision [8] [2001] 1 AC 489 at 500 F-H [9] [2018] HKCA 524 at para 14(1) |
Cases cited in this judgment