Farakh Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2196/2019

[2023] HKCFI 920

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2196 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:

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

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 2 August 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 11 July 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 21 May 2019 (the “Notice”). He named the Director as the proposed respondent. As he is seeking relief against the Decision of the Board, the Board should be the proper intended respondent. Hence, leave is granted to amend the Form 86 by naming the Board as the intended respondent and the Director as the interested party.

2.The Applicant is a Pakistani national, now aged 41. He entered Hong Kong illegally from Mainland China allegedly on 7 April 2007. He was arrested by the police on 9 May 2007 and made a torture claim by way of written representations on 18 May 2007 and 30 May 2009. His torture claim was refused by the Director on 27 December 2013. Following the implementation of the Unified Screening Mechanism (the “USM”), non-refoulement claim documents were sent to the Applicant on 21 August 2014 for completion. He did not respond and was deemed to have withdrawn his claim. Then, on 20 March 2015 he requested to re-open his non-refoulement claim. His request was rejected by the Director in his decision dated 23 April 2015. His appeal to the Board was refused on 21 July 2015. Then he made further representations to the Immigration Department on 31 July 2015 and 14 September 2015 requesting for re-opening of his non-refoulement claim. The Director requested for further information from the Applicant, however, none was forthcoming. Therefore, the Director again rejected his request on 2 November 2017. His appeal to the Board was refused on 24 April 2018. He appeared to have exhausted all avenues in claiming protection under the USM.

3.On 26 March 2019, the Applicant submitted a written signification in respect of his present subsequent claim. This time, the Director entertained his application as a subsequent claim under section 37ZP. In due course, his latest non-refoulement claim was assessed on all four applicable grounds under the 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. He now applies for leave to apply for judicial review of that Decision. An oral hearing on 1 March 2023 was scheduled for hearing the leave application.

Lifting of the legal aid stay

4.Notice of hearing of his leave application was issued to the Applicant on 10 February 2023. Subsequently, the Court received a memorandum from the Director of Legal Aid dated 17 February 2023 giving notice that the Applicant had applied for legal aid. At the hearing, the issue of legal aid stay under section 15 and Regulation 7A of the Legal Aid Ordinance was discussed with the Applicant. Apart from the usual reasons of need for legal assistance, the thrust of the Applicant’s need for the stay is that he need time to collect evidence. But he could not give particulars of the evidence he had in mind.

5.The Applicant entered Hong Kong illegally in April 2007 and commenced his non-refoulement claim in May 2007. As is shown in Paragraph 2 above, for the next eleven years he never seriously prosecuted his claim which was repeatedly refused due to his own default. He was given another chance to start the proceedings afresh in March 2019. His application proceeded its full course. His application was again refused by the Director; his appeal against the Director’s Notice was dismissed by the Board on 11 July 2019. He applied for leave to apply for judicial review on 2 August 2019.

6.The Applicant had lived in Hong Kong for 16 years. He had undergone the non-refoulement proceedings many times. He had the services of the Duty Lawyer Service. He should be thoroughly familiar with the life in Hong Kong and availability of legal aid. Yet he did not apply for legal aid until one week after receipt of the notice of hearing. His explanation that he had no knowledge about availability of legal aid is just a mere excuse. His legal aid application bears the hallmark of delay and abuse of the legal proceedings.

7.His argument that he needs time to collect evidence is another hopeless excuse. He could not give particulars of the evidence he is seeking. He had been in Hong Kong for sixteen years. He should have obtained all the evidence he needs long ago.

8.His request for legal aid stay is not made out of good faith and is calculated to de-rail and delay the proceeding. Accordingly, notwithstanding section 15 of the Legal Aid Ordinance, this Court lifted the stay and proceeded with the hearing. In all fairness to the Applicant, if he could show an arguable ground for judicial review, which is a lower threshold than good prospect of success, this Court will adjourn the hearing for further argument to a date to be fixed being not less than 42 days from date of the memorandum from the Director of Legal Aid.

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 (“NCF”) 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 his paternal uncle Muhammad Shahid Naseer (“his Uncle”) and his family due to a land dispute.

10.The Applicant is single. He had 9 years of formal education and had work experience as a mobile phone repair trainee.

11.The Applicant alleged that his late father, who lived and worked in Kuwait, and his Uncle jointly owned a large piece of farmland and his Uncle wanted to take over the Applicant’s father’s share. The farmland was rented out and managed by the Applicant’s brother until his death in 2006. Thereafter, it has been un-occupied.

12.The Applicant said that he heard from his family that his Uncle had strong ties with the Muslim League political party. He does not know about his Uncle’s position in the party or the names of the party leaders connected with his Uncle.

13.One day in 2006, the Applicant’s Uncle and his sons asked the Applicant’s brother to attend a fun program near their village. On the following day, his brother was found to have been shot dead on the farmland. The Applicant’s family believed his brother had been murdered by his Uncle because his brother had no grudge with anyone except his Uncle; but there was no evidence. The Applicant and his family reported the murder to the police but the police did not take any action. His family sent the Applicant away to live with his maternal aunt in Muradpur about two to three hours away by car from his home. The Applicant’s father was shocked by the news of the brother’s death. His health deteriorated and died in 2007.

14.Upon the Applicant’s father’s death, his Uncle approached the Applicant for his father’s share of the farmland. The Applicant refused. One day, the Applicant was intercepted on the road by his Uncle and his family. The Applicant could not recall the details of what happened, except that he was subsequently arrested by the police and accused of having attempted to shoot his Uncle and his family. A neighbour bailed him out from the police station.

15.Thereafter, the Uncle approached the Applicant’s mother for the Applicant’s whereabouts and threatened to kill him, if he were found. The Applicant’s mother considered it no longer safe for the Applicant to remain in Pakistan and arranged for his trip to Mainland China and then to Hong Kong.

16.As to the current situation, the Applicant said he had lost contact with his mother, his sister and other relatives. He said he had been told by his maternal cousin that they had left the home village because of his Uncle’s threat. The Applicant said he could not relocate to other places in Pakistan because he did not have sufficient means to stay there. He also started taking drugs for 2 to 3 years after his arrival in Hong Kong which apparently caused damage to his memory. The Applicant has not received any treatment for his drug addiction.

The finding of the Board

17.By a letter dated 31 May 2019, the Applicant requested to have his appeal determined without an oral hearing because he had already submitted all his grounds in the documents and had nothing more to add, that he was detained in Castle Peak Bay Immigration Centre and was mentally upset. The Board responded by letter dated 6 June 2019 requesting him to confirm that he understood that if there was no oral hearing and he did not clarify matters arising from his claim, the Board may make a decision adverse to his interest. The Board requested him to confirm if he wished to have an early hearing or to have his appeal determined on paper without a hearing. The Applicant replied by letter dated 12 June 2019 confirming his understanding of the content of the Board’s letter and requested the Board to make a decision based on the material he had already submitted. Then the Board acceded to his request.

18.The Board noted that there was no evidence and no land search record showing the Applicant’s father’s and his Uncle’s joint ownership of the subject farmland and particularly the nature of their co-ownership, ie whether it was owned under a joint tenancy or tenancy in common, which may have an important bearing on the inherent probability of the Applicant’s case.

19.While the Applicant said he and his family had made a report to the police about his brother’s murder, the Board noted that there was no evidence about his brother’s death, such as his death certificate, or evidence of reporting of his murder to the police. The Applicant’s explanation to the immigration officer during the screening interview was that he did not make enquiry about the police report because he was very young at that time. When confronted with the fact that he was already 24 years old in 2006, he put the burden on his family saying that it was his family which handled the matter and he did not discuss with his family about reporting to the police. However, when asked how he knew that the police took no action, he replied that his family used to talk about it at home and so he knew. Thus this evidence suggested that his family did discuss about reporting the murder to the police with him and he was not very small at the time not to make enquiries about the report. The Board found the Applicant’s claim that his brother was murdered by his Uncle was speculative.

20.The Applicant’s evidence about his arrest for the attempted shooting of his Uncle and his family is vague. He could not even give details when he was intercepted, what happened and how from being a victim of an interception he turned out to be accused and arrested for shooting or attempted shooting of his Uncle and his family.

21.The Board found the Applicant’s evidence unreliable and questionable and that his claim was largely based on unsupported assertions, hearsay and mere speculations. It could not place any weight on such evidence. It therefore did not accept the Applicant had a land dispute with his Uncle and his Uncle’s family or that he had or would be faced with any real chance of harm, if returned to Pakistan. Even if the risks turned out to be real, on the basis of credible and authoritative Country of Origin Information, the Board was satisfied that adequate police protection is available to prevent the risk and given his background and ability, the Applicant could further avoid that risk by internal relocation. The Board was therefore not persuaded even to the low standard required, that the Applicant had established the factual basis in support of his claim to non-refoulement protection under any of the four applicable grounds under the USM. Accordingly, it dismissed his appeal.

Legal principles applicable to judicial review

22.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

23.The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, he only alleged that he did not want to go back to his home country because his life is in grave danger and his enemy will kill him. In effect, he is complaining about the finding of fact by the Board that it was safe for him to return to Pakistan. For reasons as explained above, that is not permissible unless the finding involved errors of law, procedural unfairness or irrationality. He was invited by the Court’s letter dated 19 January 2023 to file written submission, he did not response. At the hearing, after explaining the above legal principles to him, the Applicant confirmed that he had no complaints about error of law, procedural unfairness or irrationality in the Decision.

Conclusion

24.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, or irrationality in the Decision. 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 had failed to establish the factual basis in support of his claim for non-refoulement protection. 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. 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. Such findings are fatal to the Applicant’s claim. 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.

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