Almas Khawar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1396/2022

[2023] HKCFI 785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1396 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.  Extension of time to file the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 1 June 2018 refused; and

2.  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 December 2022 for leave to apply for judicial review (the “leave application”) of decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 1 June 2018 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 30 December 2016 (the “Notice”).

2.The Applicant is a Pakistani national, now aged 40. He claimed to have sneaked into Hong Kong from Shenzhen on 18 September 2013. He surrendered to the Immigration Department on 23 July 2014. He subsequently made a non-refoulement claim by way of a written submission dated 27 October 2014. Whilst released on recognizance, he was arrested by the police on 28 February 2016 for trafficking in dangerous drug. Subsequently, he was convicted and sentenced to 10 months’ imprisonment on 5 May 2016.

3.In due course, his non-refoulement claim was assessed on all four applicable grounds under the United Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was dismissed by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. The Applicant now seeks leave to apply for judicial review of that Decision.

4.The leave application was made more than four and half years after the date of the Decision sought to be reviewed. Pursuant to Order 53, rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. The leave application was made four years and three months out of time. The delay is very substantial. In considering whether to grant extension of time for making an application, the court takes into account (i) the length of the delay; (ii) the explanation for the delay; (iii) merits in the substantive application; (iv) the balance of prejudice to the applicant and the proposed respondent if extension of time is granted or refused; and (iv) whether the application raises questions of general public importance which are likely to have to be resolved by the courts in any event: see AW and Director of Immigration[5]. It was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[6] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. This is precisely the type of case to which the principle in Po Fun Chan v Winnie Cheung applies. Extension of time may be refused without considering merits of the substantive application. Nevertheless, for completeness, merits will be considered for what the leave application is worth.

Application for adjournment

5.The Applicant asked for an adjournment to enable him to apply for legal aid. He had not yet applied. He said that he only just came to know that he could apply. The Applicant had been living in Hong Kong in the past 10 years except for about four years between 2018 and 2022 when he returned to Pakistan. It was his neglect for failing to apply. His application is therefore refused.

Explanation for the delay

6.In his Form 86, the Applicant said that there are good reasons for an extension of time. He claimed that he had never received the Decision as “the Applicant has returned to Pakistan being the Decision of the Adjudicator.” He said “recently the Applicant has returned to Hong Kong and he obtained a copy of the said Decision through Messrs Jal N Karbhari & Co.” Then he was arrested for being illegally remaining in Hong Kong.

7.At the hearing, clarification was sought from the Applicant about his explanation. It then transpired that he did not return to Pakistan pursuant to the Decision of the Board as his explanation seemed to suggest. He returned to Pakistan via Shenzhen towards the end of 2018 out of his own volition because his father died. Then, he sneaked back to Hong Kong in October 2022 via Shenzhen, just as he did when he came in 2013.

8.As the Board’s Decision was delivered on 1 June 2018, his explanation could not account for why he took no steps in seeking judicial review between June and December 2018. His explanation is also inconsistent with his assertion that he had never received the Decision. He has no explanation for the four years and three months’ delay in seeking judicial review. The principle in Po Fun Chan v Winnie Cheung applies.

The Applicant’s case

9.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 and the record of the screening interview in the presence of his lawyer. In gist, he claimed that, if returned to Pakistan, he will be harmed or killed by the father of his Christian girlfriend, Alina Shelokh (“Alina”), whose family is associated with the Pakistan Muslim League (Nawaz) (“PML(N)”).

10.The Applicant was born in District Gurat, Punjab, Pakistan. He is single and has no children. His immediate family resides in Pakistan. He received 10 years of formal education and had five years’ experience working in the marketing industry in Saudi Arabia from around 2001 to the end of 2006.

11.He claimed that he met Alina in a market at the end of 2011. He is a Muslim, but Alina and her family are Christians. The financial standing and social status of Alina’s family were better than the Applicant’s. Alina’s father owned the building of Shelokh Hospital in his home city. Her family is associated with the PML(N) and is influential and popular in the community. Her family did not approve of their relationship.

12.About four to five months after their relationship began, the Applicant received an anonymous phone call threatening and explicitly telling him to stop seeing Alina. The caller threatened that his life would not be spared since he had ruined the fame of Alina’s family. In 2012, the Applicant was followed by some unknown people. One night, he was arrested by the police on a charge of theft from Alina and taken into custody. He was beaten for the purpose of extracting a confession. He did not suffer any serious injuries. He was released with the help of a bribe from his uncle. He was informed that it was Alina’s father who had filed the charge against him. He had since lost contact with Alina. He removed himself to Lahore where he stayed for 12 to 13 months without incident. Then he departed for China from where he sneaked into Hong Kong.

The finding of the Board

13.Based on available background evidence and credible Country of Origin Information (“COI”), the Board considered the Applicant’s case inherently improbable. It did not accept the Applicant’s claim in its entirety. His allegation that Alina’s father owned the hospital building is inconsistent with available background evidence that the hospital had been lost to the community. His assertion that Alina’s father, being a Christian, holds an influential position within a conservative Islamic political party is inherently improbable. As Christians in Pakistan are subject to harassment from the police, it is inherently improbable that Alina’s family could rely upon the police to carry out their personal vendettas against the Applicant who is a Muslim. The Board also considered the Applicant’s delay in seeking protection nine months (but actually thirteen months) after his arrival in Hong Kong destroyed the credibility of his case.

14.The Board went on to assess the Applicant’s claim based on his accepted profile and COI. The Board found Alina’s father is a private individual, not a state actor. There is no evidence that her father had ever attempted any serious form of attack on the Applicant. In the Board’s assessment, it is unlikely that the Applicant would be of any further interest to Alina’s father.

15.Even if Alina’s father would wish to physically injure or even kill the Applicant, the Board found the Applicant could have access to sufficient protection from the police or could avoid the risk and harm by internal relocation. In coming to this conclusion, the Board had considered the serious problems of police corruption, its ineffectiveness, that Alina’s father’s actions were motivated by nothing other than his opposition to the Applicant’s relationship with his daughter, the absence of evidence that Alina’s father had used his political connexions to influence the police and that the fact that the Applicant had never approached the police or other authorities for protection.

16.Applying the law applicable to non-refoulement protection under the USM, the Board found the Applicant had failed to establish the factual basis in support of his claim to non-refoulement protection under any of the four applicable grounds. Hence, it dismissed his appeal.

The legal principles applicable to judicial review

17.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[7].

Grounds for judicial review

18.At the hearing, after explaining the above principles to the Applicant, he confirmed that he had no complaints about error of law, procedural unfairness or irrationality in the Decision. His only complaint is that the Board did not believe his evidence. In his Form 86, he advanced the following grounds of appeal.

19.Ground (1) - The Applicant complained that the Board erred in its finding that Alina’s father is not a state actor. Putting aside the question of the Applicant’s credibility, all that he could show is that Alina’s father is a rich man owning a hospital building, his family is associated with PML(N) and is influential and popular in the community. There is nothing to show that his father is a public official of the state or person able to wield the authority of the state or its government. The Applicant’s assertion that Alina’s father is a state actor is his own speculation, unsupported by any evidence. The Board’s finding that Alina’s father is not a state actor is a finding of fact which is open to the Board to make.

20.Grounds (2) to (6) and (13) – These grounds are related to the Applicant’s risk of being killed for honour. Referring to the anonymous phone call mentioned in Paragraph 12 above, the Applicant complained that the Board failed to consider his risk of being made a victim of honour killing which is very common in Pakistan. He said the host state had to take preventative measures to protect an individual alien whose life is at risk from the criminal acts of another individual. He referred to a recent case of honour killing of a man for his relationship with woman from another community in support of his fear.

21.The Applicant had not made a specific claim of honour killing, though he had mentioned the threatening phone call accusing him of having “ruined the fame” of Alina’s family. The threat had been considered by the Board but the Board flatly rejected his evidence. The Board found at Paragraph 19 of its Decision that it accepted “no part of the [Applicant’s] claim”. In other words, the Board did not believe his evidence about his affairs with Alina, the threat and his fear, be it arose out of an ordinary harassment or threat of honour killing. Furthermore, the Board found even if the risk is real, the Applicant could avoid the risk by internal relocation. These are a finding of fact by the Board. Beside, honour killing is only known to the Muslim culture and religion and not to Alina’s family which practices Christianity.

22.Grounds (8), (10) to (14) – These grounds are related to the Board’s finding that state protection is available. The Applicant complained that this finding is erroneous and that police corruption and ineffectiveness in Pakistan is extremely serious. He argued that the Board erred in taking into account the fact that Applicant had never approached the police or other authorities for protection and assumed that state protection is available. He quoted his uncle’s bribing the police to secure his release as evidence of the seriousness of corruption in the police and referred to a recent case of honour killing as evidence of ineffectiveness of the police. He argued that the issue is whether in fact protection is provided and not whether it would be provided.

23.The Board’s finding is based on authoritative and credible COI. The fact that someone was killed by honour killing in a particular case does not necessarily mean the Board’s finding in the instant case wrong. In finding that state protection is available, the Board had taken into account conflicting COI, police corruption and ineffectiveness. It is a finding of fact which the Board was entitled to make on the evidence.

24.Ground (7) and (9) - Unfairness. The Applicant argued that the Decision is unfair and irrational. It failed to meet the high standard of fairness required by the Wednesbury test. He did not give any particulars of the irrationality or unfairness complained of. His complaint about irrationality is basically that the Board did not believe him. It is a general complaint against the Board’s finding of fact.

25.These grounds revolve around the finding of fact by the Board. For reasons as explained in Paragraph 17 above, this is not permissible except where such finding is the result of errors of law, procedural unfairness or irrationality in the Decision. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is 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 the entirety of his case. He had therefore failed to discharge his burden of proving his fears and risks. 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.

26.Furthermore, on his own admission, he had actually returned to Pakistan in December 2018 and stayed there for four years. That would be the end of his refoulement claim. That also speaks volume of his safety in his home country. Having returned, he is precluded from making a subsequent claim in respect of his re-entry.

Conclusion

27.The Applicant’s application was badly out of time and he has no reasonable explanation for the delay. For reasons as given above his intended application for judicial review has no prospect of success. His application for extension of time to apply and his application for leave to apply for judicial review is refused.

Dated the 29^th 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