Hassan Waheed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3319/2019

[2023] HKCFI 2376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3319 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:

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

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 7 November 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 31 October 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 5 July 2018 (the “Notice”) refusing his claim for non-refoulement protection. The Applicant has not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered that the application be justly determined on paper without an oral hearing.

2.The Applicant is a Pakistani national. He claimed to have entered Hong Kong on 7 January 2015 illegally. He surrendered to the Department of Immigration on 20 January 2015. On 3 June 2015, 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]. 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.

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 creditors upon his return to Pakistan.

5.The Applicant was born in District Attock, Pakistan, now aged 55. He has completed around 11 years of education and had obtained a Bachelor of Arts degree. He is married and has six children. Up until his departure from Pakistan, he had 25 years of employment and self-employed working experience. In 1994, he operated a hardware retail shop called ‘Hassan Traders’. His business suffered substantial losses since 2005. Consequently, he had to take out loans from five creditors in the sums of 2 to 4.5 million rupees each, totalling 15.5 million rupees. The business kept on deteriorating and he closed down his business in 2011.

6.Despite selling his land which helped to repaid about 20% of his debt, the Applicant was unable to repay all his loans. This situation led to tension with his creditors. In winter 2011, one of the creditors, Abid Badshah (Abid), confronted the Applicant at his home and threatened to kill him unless he paid. The Applicant made a report to the Hazro police station. The police did not make a formal record but only pacified him that they would come to his assistance if anything happened.

7.In the summer of 2012, another creditor Tam Raiz Khan (Tam) assaulted the Applicant while he was praying in a local mosque and threatened to kill him. Tam left when a passer-by intervened.

8.These altercations led the Applicant to hide in his sister's place in Karachi. However, another creditor, Abdul Qayoum (Abdul), located him and forcibly took him back to Hazro where he was detained in a warehouse for over two days and assaulted. He was only released after his brother pleaded with Abdul and assured him that the Applicant would pay his debt.

9.The Applicant was unable to pay after three months and fled to Karachi to work in a small restaurant. Feeling unsafe there, he moved to Lahore. However, Abdul tracked him down in Lahore and took him back to Hazro where he was detained in another location for about three months, during which he was frequently beaten. The Applicant ultimately managed to escape after three months when the hitman was caught off guard.

10.By then, the Applicant’s debt had escalated to 20,000,000 rupees and there was no prospect that he could repay such an amount. He thought the police would not be able to protect him as his creditors are well connected with the police and would bribe them. He did not consider he could relocate to other areas in Pakistan as his creditors could track him down with their network or through his mobile sim card. Believing that his creditor would kill him, the Applicant departed Karachi, Pakistan on 25 December 2014 and then came to Hong Kong.

The finding of the Board

11.Despite the Applicant was unable to provide any documents to support his claim about his debts owed to his five creditors, the Board accepted the general tenor of his evidence, except for certain details and certain assertions as mentioned below, including non-availability of state protection and internal relocation. The Board accepted that he owed significant sums of money to his creditors and that one or more of them might have taken “firm action” against him, such as threatening him with death and ill-treating him. However, the Board found the ill-treatment did not attain the minimum level of severity. It found that the evidence only indicated that his creditors intended to apply pressure to cause him to repay the debts but did not show any real intention to execute the death threat.

12.Having found the Applicant’s evidence about his attempt to report the death threat inconsistent, the Board rejected his evidence that the police had failed to act on his complaints and found he had not pursued the complaints with the police because he did not feel an imminent or real risk of harm from his creditors. It did not accept the Applicant’s assertion that his creditors were as powerful or influential as could motivate members of their political party to harm or kill him. It rejected his evidence that Abdul was able to track him down even after he had moved to Lahore. Given his educational background and work experience, the Board found it would not be unreasonable to expect the Applicant to move to other areas in Pakistan to avoid the threat from his creditors. On the basis of authoritative and credible country of origin information, the Board found on balance that police protection is available and internal relocation viable.

13.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 the factual basis to support his claim 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

14.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

15.The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, the only complaint he raised was that the Board disregarded his dangerous situation in 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. 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

16.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; correctly identified the issues and observed a very high standard of fairness.

17.The Board accepted the general tenor of the Applicant’s assertions, except for certain details and certain assertions. It assessed the Applicant’s claim largely on the basis of the case as he asserted. In respect of the part of his case which the Board accepted, the Applicant could have no complaint. In respect of the part of his case which the Board rejected and the finding of fact which it made and which the Applicant disagreed, they are exclusively findings of fact within the province of the Board to make which the Applicant could not have any valid objections. It was on the basis of these findings of facts that the Board found the feared risk of harm unlikely to materialize, that state protection is available and that internal relocation feasible. Hence, the Board came to the conclusion that the Applicant is not entitled as a matter of law and fact to non-refoulement protection under any of the four applicable grounds. These findings of facts are exclusively within the province of the Board to make, 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 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. The application for leave to apply for judicial review is therefore refused.

Dated 20^th day of September 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