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

HCAL 1285/2023

[2023] HKCFI 2940

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1285 of 2023

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 apply for leave to apply for Judicial Review is refused; and

2.  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 26 July 2023 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 30 May 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 22 March 2021 (the “Notice”).

2.The Applicant is a Pakistani national, now aged 29. He entered Hong Kong on 25 June 2019 illegally and surrendered to the authorities on 9 March 2020. On 11 May 2020, he raised a non-refoulement claim. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified 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. He now applies for leave to apply for judicial review of that Decision.

3.The application was filed almost 14 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 filed almost 11 months out of time. In AW and Director of Immigration and William Lam[5], 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. 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[6] 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 in the absence of a reasonable explanation, leave may be refused on this ground alone.

4.The explanation he gave for the delay in making the leave application is that he was sentenced to imprisonment for about one and half years. Hence, he could not have made the leave application until he was released a month ago. In answer to the Court’s question that he could have made the application through the prison welfare officer, he said he was told he could not make the application while in custody. This is contrary to the practice of the Correctional Services Department which this Court is familiar with and this Court has handled numerous leave applications filed by the prison welfare officers on behalf of non-refoulement claimants. This Court does not accept his explanation. The Applicant has failed to provide a reasonable explanation for the delay and leave to file the leave application out of time is refused. Nevertheless, for completeness, the Court proceeds to assess the prospect of success in the proposed judicial review.

The Applicant’s case

5.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 claims that he would be harmed or killed by his cousin (Sohail) upon his return to Pakistan because of their dispute over the ownership of a piece of farmland.

6.The Applicant was raised in the Saleem Khan Village, Tehsil Hazro, District Attock, Punjab, Pakistan. He completed Grade 4 of primary school and had 12 years of work experience spanning over various occupations including mechanic, shop owner, farmer and labourer in Dubai. His father and his uncle jointly inherited a piece of farmland from their father. His uncle’s son, Sohail, wanted to exclusively occupy the farmland for his transportation business. Sohail was a wealthy individual connected to the political party Pakistan Tehreek-e-Insaf (“PTI”). In around the end of 2018, upon noticing unauthorised construction works on the farmland, the Applicant and his father confronted Sohail. The confrontation ended in a physical altercation. Sohail pushed the Applicant’s father to the ground. The Applicant retaliated by striking Sohail with a stick, causing injuries to Sohail’s head and back. Sohail threatened revenge and to take over the farmland.

7.The first attack on the Applicant occurred in January 2019 when he met Sohail who was walking his two dogs. Sohail said to the Applicant that he would teach him a lesson and released the dogs. The dogs bit the Applicant on his right leg. Then, Sohail beat the Applicant with a stick, saying that was just the start. The Applicant suffered severe injuries over his right leg and bruises on other parts of his body. It took him three weeks to recover. Though he lodged a complaint at the Hazro City police station, the officer refused to register his complaint. He was later told by the police that Sohail had notified the police that the incident was an accident. The Applicant suspected that Sohail have bribed the police.

8.A week later, out of fear the Applicant moved to Lahore City to stay with a friend. About one and half to two months after the first attack, he was again attacked by Sohail and three men with bare hand and bat. The assailants left when his neighbours came out. He suffered nose and arm fractures and injuries to his back and legs. He was hospitalised for a week. The police of Lahore City took a statement from him in hospital and said that they would forward it to the local police station. But no further action followed.

9.Out of fear, the Applicant moved to Karachi and stayed for about one and half months whilst waiting for his visa to China. In June 2019, he flew from Karachi to China and then came to Hong Kong illegally. Nothing eventful happened during his stay in Karachi.

Finding of the Board

10.The Board assessed the Applicant’s claim on the basis that the factual case as he asserted was true; but was not satisfied that he had established his entitlement to protection under any of the four applicable grounds under the USM.

11.The Board found the Applicant’s dispute with Sohil was a private family dispute over farmland and that he had failed to show that the ill-treatment by Sohail was inflicted on account of any of the reasons under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol ( the “Refugees Convention”). It found the ill-treatment, individually and cumulatively did not attain the minimum level of severity required. As he had not been threatened or attacked since moving to Karachi, the Board considered it would be very difficult for Sohail to locate the Applicant anywhere in Pakistan. On the basis of authoritative and credible country of origin information, the Board found that despite corruption and deficiencies in the Pakistani police, steps have been taken by the government to improve police efficiency and professionalism; and there are avenues for complaint against police misconduct and neglect of duty towards the citizens. The Board found adequate state protection available. Hence, in respect of Persecution Risk ground, the Board found the Applicant’s fear of being harmed or killed is not well-founded.

12.For the same reasons as above, it found the ill-treatment suffered or likely to be suffered by the Applicant does not attain the minimum level of severity to meet the high threshold required for proving BOR 3 Risk or Torture Risk grounds.

13.In respect of BOR 2 Risk ground, the Board found that the Applicant’s fear is of persecution by Sohail but not by the state of Pakistan and there is no evidence of state involvement or encouragement in any way in his dispute with Sohail and in causing harm to the Applicant. The Board found the Applicant had failed to establish that he would be exposed to any real risk that his rights under BOR 2 will be violated upon his return to Pakistan.

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[7].

Grounds for judicial review

15.The thrust of the Applicant’s grounds for judicial review as asserted in the Form 86 are:

(1)  that he was unrepresented at the hearing before the Board, impliedly complaining that it was a breach of the high standard of fairness by not providing him legal assistance;

(2)  that the immigration officer’s suggestion of internal relocation was not reasonable; and

(3)  that the immigration officer failed to consider all the material facts and documents before him carefully.

The Court assumes in the Applicant’s favour that his complaints against the immigration officer refers to the Board, which is the decision maker in respect of the Decision.

Ground (1) – Unfairness and lack of legal representation

16.The Applicant complained that he was not provided with legal assistance and representation in pursuing his appeal before the Board. There is no dispute that such assistance had been provided to him in preparing his NCF and in his screening interview before an immigration officer, which are the most important proceedings in the non-refoulement process.

17.In Re Zafar Muazam[8], Re Zunariyah[9], Re Zahid Abbas[10], Re Tariq Farhan[11], and Re Lopchan Subash[12], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[13] nor the judgment of FB v. Director of Immigration[14] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The Applicant was legally represented up to the conclusion of the screening interview, but not at the appeal before the Board. The real question is whether the claimant was prejudiced for want of legal assistance.

18.The Applicant had the benefit of legal representation in presenting his case to the Director. All the benefits that legal representation could have afforded him were contained in the written submissions, non-refoulement claim form and answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board on his appeal. Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board. Taking a global view of all the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board.

Ground (2) – Error in the finding on internal relocation

19.While the Board mentioned in Paragraph 28 of its Decision that the Applicant had not been threatened or attacked since moving to Karachi, the Board did so in the context of assessing his likelihood or risk of persecution upon refoulement. Internal relocation was an unnecessary factor which the Board need not and have not considered in view of its finding in the immediately preceding paragraph that the Applicant’s ill-treatment did not arise out of disagreement based on race, religion, membership of a particular social group or political opinion.

20.Internal relocation never formed the basis of the Board’s Decision. The Board said in Paragraph 48 that “(t)he issue of internal relocation only arises where the [Applicant] has established that he is a refugee under the [Refugee Convention]” and in Paragraph 49 that “(t)he [Applicant] has failed to show persecution risk, so it is considered not necessary to deal with the issue of internal relocation.” The Board has not made any finding about internal relocation and that issue never formed part of the basis of the Board’s Decision.

Ground (3) - The Board failed to consider all the material facts and documents carefully

21.This is a direct challenge on the Board’s finding of fact which is not permissible in a judicial review unless the finding is the result of error of law, procedural unfairness or is irrational. This ground is just a bare assertion as the Applicant has not identified what material facts and documents the Board had failed to consider. The Board actually assessed his claim on the basis of the factual case as he had asserted. The Applicant could not have any complaint on these finding of facts by the Board. It was on the basis of these finding of facts and the applicable legal principles that the Board found, in essence, that his dispute with Sohail is a private dispute and the risk of harm arising therefrom fell outside the protection of the Refugees Convention for the purpose of Persecution Risk ground; and that the ill-treatment he suffered or would be likely to suffer, if refouled, would unlikely attain the minimum level of severity to constitute torture for the purpose of proving BOR 2 Risk, BOR 3 Risk and Torture Risk grounds. Hence, the Board came to the conclusion that the Applicant was not entitled as a matter of law and fact to non-refoulement protection under any of the four applicable grounds. Insofar as this conclusion is a finding of fact, it is exclusively within the province of the Board to make, which the Court on a judicial review will not interfere, save for errors of law, procedural unfairness and irrationality. Insofar as the conclusion is a finding based on its application of the law, the Board correctly applied the applicable legal principles to its finding of fact. The Court could not detect any error of law or procedural unfairness in the making of this finding. The finding is not unreasonable or irrational.

Conclusion

22.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. 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. There is also no merit in the Applicant’s grounds of application. For all these reasons, the proposed judicial review has no realistic prospect of success.

23.The leave application was made almost eleven months out of time. The Applicant could offer no reasonable explanation for the very substantial delay in making the application. The proposed judicial review also has no realistic prospect of success. Accordingly, extension of time for filing the leave application and the application for leave to apply for judicial review are refused.

Dated 13^th day of November 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