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

HCAL 67/2022

[2024] HKCFI 31

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 67 of 2022

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  Leave for the applicant to apply for Judicial Review of the Board’s Decision be granted; and

2.  The applicant must take out the originating summons for the application for judicial review of the Board’s Decision within 14 days after service of this Order in accordance with Order 53, rule 5 of the RHC.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 21 October 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 25 October 2023.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 25, is a national of Pakistan. He departed Pakistan for China by air on 16 June 2019 where he sneaked in Hong Kong by boat on 25 June 2019. On 17 March 2020 he was arrested by police and referred to the　Immigration Department. He lodged his non-refoulement by way of a written signification of 18 March 2020 on the basis that, upon being refouled, he would be harmed or killed by Qazi Ahmed Akbar and/or his people because of political dispute.

5.In short, the applicant was an active supportive of the Pakistani Muslim League (Nawaz) party (“PMLN”) between 2013 and 2018. He campaigned for candidates for the National Assembly of Pakistan and the Provincial Assembly of the Punjab in 2018. Before the 2018 election, there was a fight between members of the PMLN and the Pakistan Tehreek-e-Insaf (“the PTI”). He was stabbed by an unknown man with a sharp object on his right elbow, and required stitches. A nephew of Qazi Ahmed Akbar (“Qazi”), a candidate of the PTI, received a head injury.

6.Seven or eight days later, 15 to 18 unknown people of the PTI beat the applicant with hockey sticks. They left after threatening to kill him after the elections. He received stitches to his head at the hospital. The PTI people wanted revenge on him because he was the main supporter of the PMLN and had brought fellow students to join PMLN gatherings.

7.In the 2018 elections, the PMLN candidate retained his seat in the Provincial Assembly by defeating the PTI candidate Qazi. Qazi was angry with the applicant because he lost election, and threatened to kill him over the phone. The applicant fears Qazi and his people.

8.Later, PTI people, armed with guns came towards the applicant and a friend, Adil, on the way to the bazaar; however, he and his friend were able to flee.

9.Details of his story can be found in paragraphs 4-11 of the Board’s Decision.

The Director’s Decision

10.As he had raised a torture claim and was rejected, the Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim as it was unsubstantiated. The Director found that: (i) the level of risk of him being harmed or killed by Qazi and/or his people upon his return to Pakistan was assessed to be low; (ii) state protection would be available to him [19]; (iii) internal relocation alternatives were available and reasonable [19].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board. The Board fixed a date on 9 April 2021 for the hearing of his appeal. A notice of hearing was sent to the applicant’s last known address. He did not appear at the hearing. A statutory notice under section 15, Schedule 1A was sent to the applicant asking for written explanation for his absence. No explanation was received by the Board. Unsuccessful efforts were made by the Secretariat of the Board to contact the applicant on the mobile phone number provided by the applicant. No explanation was provided by the applicant.

13.The Board therefore found and concluded:

“34. However, in view of his failure to attend the Hearing, the Board is unable to determine the credibility of his assertion. In the absence of oral evidence from him, the Board is unable to determine whether there is a real risk or there are substantial grounds for believing that he would suffer the harm he claims to fear were he to return to Pakistan.

35. The Appeal/Petition is accordingly dismissed on all applicable grounds.”

Application for leave to apply for judicial review of the Board’s Decision

14.The applicant has filed Form 86 dated 18 January 2022 for leave to apply for judicial review of the Board’s Decision.

15.The applicant has raised the issues of him being subjected to domestic or sexual violence were he repatriated to Pakistan, and he should be provided with a lawyer to protect him. He further complained that there should be medical report to determine whether violence is be qualified as “torture”. He then referred to the law relating to subsequent claims. He asks for legal and interpretation service assistance.

DISCUSSION

16.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he did not receive the Board’s Notice of Hearing and Decision because he changed his address without informing the Board his new address. He only learned that his appeal was dismissed when he went to the Immigration Department. He said he wants the Court to re-consider his case. He also said he wants to provide his evidence to the Immigration Department.

18.The question before the Court is whether the Board was correct to dismiss the applicant’s appeal under the circumstances that the applicant had failed to appear before the Board on the date of the hearing and he had failed to submit written explanation to the Board for his absence.

19.As the applicant had changed his address without informing the Board, he cannot complain for not receiving the Board’s Decision. Section 37ZA(2) of the Ordinance provides that the applicant must update the Director and the Appeal Board the address:

“Duties of claimant

(2) A claimant must provide to the Director and (on an appeal) to the Appeal Board—

(a) the claimant’s residential address in Hong Kong; and

(b) the claimant’s correspondence address in Hong Kong (if different from the residential address),

and must notify the Director and (on an appeal) the Appeal Board in writing of any change in either of those addresses as soon as practicable after the change.”

20.The Court of Appeal in Re: Karamjit Singh [2018] HKCA 460, Hon Chu JA and Barma JA, 2 August 2018 held:

“14. … …It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346….”

21.The question hinges upon whether the Board had contravened any of the public law requirements, viz. whether its decision was a result of (i) any error of the law; (ii) procedural unfairness causing prejudice to the applicant; or (iii) being Wednesbury unreasonable.

The Board’s duty is to find the primary fact of the claim

22.The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were), 21 November 2012, held:

“30. …In deciding whether there are “substantial grounds for believing” that the torture claimant would be in danger of being subjected to torture in the state in question, the Director and the adjudicator would need to make findings of primary fact. To take the present case as an example, one needs to decide whether the applicant’s story about what happened to him and his friend, C, back in Pakistan was true or not. In relation to the primary facts comprising the applicant’s story, the Director and adjudicator had to make findings of fact. The burden lay with the applicant to convince the Director and the adjudicator that what he said was true (subject to the high standards of fairness described above).

31. So far as the standard of proof in relation to the primary facts is concerned, one applies the civil standard, that is, the balance of probabilities: Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706; Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589.”

The Board erred in simply rejecting the applicant’s claim without finding the fact

23.The Court of Appeal in MS v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2021] HKCA 979, Hon Barma, Au and G Lam JJA, 8 July 2021, held:

“24. …it seems to us reasonably arguable that the Board erred in simply rejecting the applicant’s case due to his low general credibility and the lack of opportunity to test his credibility further through oral examination, …the Board should have assessed the substantive propositions of fact and make findings on them looking at the applicant’s case in the round. See SM (section 8: judge’s process) Iran [2005] UKIAT 00116; Re Hidayah [2018] HKCA 595 at [15]; TK v Michael Jenkins & anor [2013] 1 HKC 526 at [30]-[31].”

24.It is therefore apparent that despite the absence of the applicant before the Board, the Board should, nevertheless, proceed to assess the materials and evidence before it and make a finding of the primary fact in relation to the claim, state protection and internal relocation, taking into consideration of the applicant’s conduct under section 37ZD of the Ordinance in relation to the credibility of the applicant. In terms of the factual basis of the applicant’s claim, some issues on which the Board finds incredible may not necessarily lead to wholesale rejection of the facts of the claim. If the Board finds against the applicant’s credibility on the facts of the claim, it should give reasons that such credibility issues undermine the factual basis of the applicant’s claim. The Board has failed to do so in this case.

25.The applicant therefore succeeds to show that there is reasonable prospect that his application for judicial review of the Board’s Decision may succeed.

CONCLUSION

26.Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s Decision. The applicant must take out the originating summons for the application for judicial review of the Board’s Decision within 14 days after service of this Order in accordance with Order 53, rule 5 of the RHC.

Dated the 11^th day of January 2024

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