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

HCAL 1190/2022

[2023] HKCFI 674

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1190 of 2022

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:

1.  Leave to amend the Form 86 by naming the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) as the proposed respondent and the Director of Immigration as the interested party granted;

2.  Extension of time for the Applicant to apply for leave to apply for Judicial Review of the Board’s Decision dated 9 October 2020 refused; and

3.  The application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 2 November 2022 for leave to apply for judicial review. In the Form 86, the Director of Immigration is named as the proposed respondent and interested party; and a decision dated 9 October 2020 is identified as the decision in respect of which relief is sought. At the hearing, the Applicant confirmed that he is seeking to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-refoulement Claims Petition Office (“the Board”) dated 9 October 2020 (“the Decision”) dismissing his appeal against the notice of decision of the Director dated 21 November 2018 (“the Notice”).

2.The leave application was made almost 25 months after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, it is almost 22 months out of time. Leave to file the leave application out of time is required. In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time:

(1)  length of the delay;

(2)  explanation for the delay;

(3)  merits of the substantive application;

(4)  prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and

(5)  whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

3.Merits is usually a very important factor. Where the delay is not very substantial, merits is usually the determinant factor. But it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[2] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. The delay in this case is so substantial that leave may be refused on this ground alone. Nevertheless, for completeness, the Court proceeded to assess the prospect of success in the proposed judicial review.

4.The Applicant is a Pakistani national. He sneaked into Hong Kong from Mainland China on 8 April 2014 and surrendered to the Immigration Department on 28 April 2014. He first lodged his non-refoulement claim by way of written representation on 28 April 2014 but withdrew it on his own initiative on 13 December 2016. Then he raised a non-refoulement claim on the same basis by way of another written representation on 20 January 2017.

5.In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. His claim was dismissed by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now seeks leave to apply for judicial review of that Decision.

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 prepared by him with legal assistance. In gist, he claimed that, if returned to Pakistan, he will be harmed or killed by his enemies belonging to the Pakistan Muslim League (Nawaz) (“PML(N)”) for being a supporter of a rival political party, namely the Pakistan Muslim League Quaid-e-Azam (“PML(Q).

7.The Applicant is now aged 32. He is single and had ten years of formal education. He claimed that he had been a supporter of the PML(Q) at a local level since 2012. He did not hold any position in PML(Q). His duty was to arrange party activities such as rallies and meetings, putting up banners and preparing for the election in May 2013. He received threats on three to four occasions from his enemies demanding him to leave the PML(Q), otherwise they would kill him. He ignored them.

8.In late 2012, a group of about ten of his enemies requested the Applicant to deflect to PML(N). When the Applicant refused, his enemies assaulted him with wooden sticks. He sustained bruises and swellings all over his body. This attack lasted for around 10 minutes. The Applicant received medical treatment in a private clinic and took a week to recover. He reported the assault to the police. Once the officers knew the attackers were members of the PML(N), they refused to register his complaint. The Applicant believed it was possibly because the police would only safeguard the interest of the ruling party, ie PML(N).

9.The Applicant continued to be threatened by his enemies from time to time up to the 2013 Election. Soon after the PML(N) had won the election, the Applicant was attacked by about eight of his enemies when he was alone walking back home. Apart from beating him, his enemies also fired gunshots into the air to threaten him. They said they would kill him the next time. The Applicant fell semi-unconscious. He was taken to a hospital by passers-by for treatment, including having the thumbnail of his left hand removed. It took about two weeks for the Applicant to fully recover. Given his experience with the police in respect of the previous incident, the Applicant did not report this attack to the police.

10.Out of fear, the Applicant moved to Multan City which is 12 hours away by train. He kept a low profile there. He was informed by his family and members of the PML(Q) that his enemies were still looking for him and attacking PML(Q) members. The Applicant’s family were also threatened by his enemies, but were not physically attacked.

11.In late June/early July 2013, the Applicant was informed that his enemies had found out he was hiding in Multan City. Out of fear, he planned to leave Pakistan for Dubai. His first attempt on 8 July 2013 failed because he was not allowed to board the plane as he had not paid bribe to the immigration officer. His second attempt on 14 July 2013 was successful after paying a bribe of 10,000 rupees. While in Dubai, the Applicant was informed that the situation in Pakistan seemed to have improved, though his family told him that his enemies were still looking for him. He returned to Multan City on 19 August 2013 after learning that he could not apply for protection in Dubai.

12.Though nothing eventful happened to him in Multan City, the Applicant was told by his family that his enemies were looking for him. He did not believe internal relocation possible as the PML(N) had a wide network in Pakistan. So he flew to China on 18 November 2013 and then sneaked into Hong Kong. While in Hong Kong, the Applicant was informed by his family that his enemies were still attacking PML(Q) members and looking for him.

The finding of the Board

13.An oral hearing on 18 June 2020 was scheduled for hearing the appeal. The Applicant was legally represented by the Duty Lawyer Service (“DLS”) but he did not appear. His legal representative informed the Board that he was unable to contact the Applicant. The Board issued a letter to the Applicant through the DLS requesting an explanation for his absence at the hearing. By a letter dated 24 June 2020, the DLS informed the Board that they had no instructions from the Applicant and were unable to further act for him. The Board then issued a similar letter to the Applicant at his last known correspondence address on 26 June 2020 requesting an explanation for his absence at the hearing. The Applicant did not respond. Then the Board proceeded to make a determination on the basis of the material before it and the DLS’ written submission, without the benefit of the oral evidence from the Applicant.

14.The centrepiece of the Applicant’s case is his fear of being harmed or killed by his enemies from PML(N), if refouled to Pakistan. Given his profile as a mere supporter of PML(Q), the Board found it unconvincing or inherently improbable that the PML(N) would mobilize its manpower and resources to target him and persuade him to join them. Even accepting there were disputes between him and his enemies, they were private disputes only and the injuries he suffered during the two attacks did not attain a minimum level of severity. The fact that his enemies fired shots into the air during the second attack when they could have seriously harmed or kill him also evinced an absence of intention to seriously harm or kill him. As nothing eventful had happened to the Applicant during his stay in Multan City, the Board rejected the Applicant’s allegation that his enemies would locate him everywhere in Pakistan as his own speculation. The Board found he has failed to show a real risk of harm, if refouled.

15.The Board found no evidence that the Applicant’s enemies were public officials relating to the state of Pakistan and that public officials or persons able to wield the authority of the government and/or state had any connection with this claim.

16.The Board found no evidence that the Applicant was ill-treated with the intention listed in section 37U of the Immigration Ordinance and that the ill-treatment had any relevance to the interest and/or benefit of the Pakistani government. As the Applicant was able to leave Pakistan for Dubai and China, the Board found he was not a target of the Pakistani government.

17.There is also no evidence that the Applicant had a well-founded fear of persecution for a reason enumerated in Article 1A(2) of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the “Convention reasons”) or that the state of Pakistan was unwilling or unable to protect or help him for a Convention reason or for any other reasons.

18.The Board rejected the Applicant’s allegation that the police refused to register his complaint in order to protect the interest of the PML(N) and would not help him as his own speculation. It was the Applicant’s own volition not to report the assaults to the police or the authorities at higher level when police at local level refused to register his complaint. After considering conflicting Country of Origin Information (“COI”), the Board was satisfied that state protection of an adequate standard is available.

19.On the basis of the COI, the Board also found internal relocation a viable option to avoid the harm. As an able-bodied young man, the Board found it would not be unduly harsh or unreasonable to expect the Applicant to relocate to other parts of Pakistan to avoid the risk of harm such as Multan City where he had stayed for a substantial period in 2013 without problem.

20.Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish his claims for protection under any of the four applicable grounds under the USM and dismissed his appeal against the Director's Notice.

Legal principles applicable to judicial review

21.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[7].

Grounds for judicial review

22.The Applicant did not advance any grounds of judicial review in the Form 86 or his supporting affirmation. Usually, applicants sought judicial review because they disagree with the Board’s finding that it is safe for them to return to their home country. That would amount to a challenge of the Board’s finding of fact which is not permissible unless the finding involved errors of law, procedural unfairness or irrationality. Thus, 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.

Conclusion

23.The Board has discretion under section 12 of Schedule 1A of the Immigration Ordinance to make a determination without a hearing. The Court noted that the Board had directed an oral hearing. That usually suggests that the Board considered there were material factual disputes raised by the appeal which could not be determined on paper without an oral hearing or that there were matters in respect of which clarification from the Applicant was called for before a just determination could be made. The Board respected the Applicant’s interest to have his claim heard in a hearing and directed an oral hearing.

24.The events leading to the making of the Decision are set out in Paragraph 13. The Applicant did not attend the oral hearing and put himself out of reach of his lawyer. He did not respond to the Board’s letter requesting for explanation for his absence. It was only after making repeated attempts by the DLS and the Board to contact the Applicant to which the Applicant did not respond that the Board proceeded to make a determination of his appeal on the basis of the materials before it and the submission of the DLS.

25.This Court has not overlooked the possibility that the Applicant might have moved and might not have received the notice of hearing. However, in his leave application, the Applicant did not complain about not having received notice of the oral hearing. He did not raise any issue that the Decision was made without him having been heard. In any event, if he had lost contact with the DLS or had not received the Board’s letter dated 26 June 2020 because he had moved, he only had himself to blame for neglecting to update the DLS or the Board with his change of correspondence address and had to bear the consequence: see: Karamjit Singh[8] and Re Hasmi Rizwan Imran[9].

26.In the Decision, the Board identified the Applicant’s assertions which are not supported by evidence and gave adequate reasons for rejecting some of those assertions as mere speculations. Except for those speculations, the Board made the determination on the basis of the case as the Applicant had asserted. It gave him all the benefit of doubt it could have given and, except for what it considered on good reasons as speculations, accepted all his allegations on a very low standard of proof. The Applicant had been given opportunity to be heard so that he may make clarifications. He did not take up the opportunity. This Court is satisfied that the Board had observed the high standard of fairness which the circumstances allowed.

27.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 Applicant’s claim on the basis of the case as he asserted but found there is no real risk that he would face any harm on his return to Pakistan. On the basis of credible COI, the Board was also satisfied that state protection of an adequate standard and internal relocation are available to prevent or avoid the risk if it turned out to be real. It was on that basis that the Board found that the Applicant 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 where 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 does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, leave to apply for judicial review is refused.

Dated the 3^rd day of March 2023

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