Hussain Babar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 3794/2019 on BabelCite. This High Court CFI judgment.
1. This is the Applicant’s application by Form 86 filed on 19 December 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 13 December 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 18 October 2018 (the “Notice”).
Cites 1 case
|
HCAL 3794/2019 [2024] HKCFI 745 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3794 of 2019
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge To:
Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 19 December 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 13 December 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 18 October 2018 (the “Notice”). 2.The Applicant is a Pakistani national. He entered Hong Kong illegally on 26 May 2015 and was arrested on 28 May 2015. On 30 May 2015, he raised a non-refoulement claim. In due course, his 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 3.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 he witnessed a murder and will be harmed by the murderers and the victim’s family members (collectively, his “enemies”) upon his return to Pakistan. 4.The Applicant was born in Mirpur, Azad Kashmir, Pakistan. He has nine years of education and has worked as a salesperson. He operated his own clothing shop. On a day in mid-2012, he witnessed the murder of a boy at a grocery store near his friend’s home. The murderers were two boys who arrived at the scene on a motorbike. They came from a rich family. Two or three of their brothers were police officers. The Applicant reported the incident to the Mirpur Police Station the next day. The police officer issued him a First Information Report (“FIR”). 5.About a week later, the victim’s family asked the Applicant to testify. Then, another week later, he was attacked by five men carrying hockey sticks and cricket bats whom he believed to be sent by the murderers. The attack lasted about five to seven minutes. He sustained bruises all over his body and had scars on his shoulder and left leg. The Applicant was taken to a hospital by his brother and was hospitalised for one week. It took him four weeks to recover. 6.The Applicant reported the attack to the Mirpur Police Station but the police did not take any action. The victim’s family later came to his home and threatened to kill him should he refuse to testify. 7.The Applicant fled to Kotli City to live with his friend to avoid the murderers and the victim’s family. He moved to Gujranwala after an unknown person approached his friend for information about him. He did not suffer any harm in Kotli City or Gujranwala. Out of fear for his safety, he fled to Mainland China on 14 February 2015 and then sneaked into Hong Kong. 8.He does not believe the Pakistani police would help him or that he could avoid his enemies by internal relocation as he believes they could locate him anywhere in Pakistan. The finding of the Board 9.The Board accepted that the events relied on by the Applicant took place. It accepted that he had witnessed a murder and that had been attacked by the murderers’ party on one occasion and threatened by both the murderers and the victim’s family. 10.Although the Applicant claimed that the police took no action after receiving his complaint, there was no evidence that this was in fact the case because the Applicant never followed up with the police. In fact, according to the Applicant, he was not harmed after the Commissioner of Police had assured him of his safety. Furthermore, according to authoritative and credible country of origin information (“COI”), there are avenues for complaint against police for their neglect in performing their duty. He could complain to the National Accountability Bureau or the Office of the Ombudsman to compel the police to give him protection. The Board was satisfied that adequate state protection was available to the Applicant. 11.The Board doubted whether it was necessary for the Applicant to flee to Kotli City or Gujranwala, as adequate police protection would be available. The fact that he was never harmed in those locations suggested that his enemies lacked the means to locate him. It therefore found internal relocation to Rawalpindi or Islamabad would be viable. 12.The Board considered the injuries inflicted on the Applicant were not the most severe. Despite his assailants had the chance to inflict more serious injuries on him, they refrained from doing so. The victim’s family had only verbally threatened him but they never carried out the threat. Hence, the Board considered the harm which the Applicant would receive would unlikely exceed the minimum level of severity as to entitle him to protection under any of the applicable grounds and assessed the risk of harm to the Applicant upon his return to Pakistan to be low. 13.In relation to Torture Risk ground, the Board specifically found that there was no evidence of any state involvement or acquiescence in inflicting the injuries on the Applicant or in threatening him. In relation to Persecution Risk ground, the Board noted that the Applicant’s disputes with his enemies originated from a private dispute which had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the 1951 Convention relating to the status of Refugees and its 1967 Protocol. 14.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 claims for protection under any of the four applicable grounds under the USM. Thus, even on the basis of the factual case as he asserted, the Board found he is not entitled to protection under any of the four applicable grounds. The Board therefore dismissed his appeal against the Director’s Notice. Legal principles applicable to judicial review 15.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 16.In his Form 86, the Applicant annexed a two-page document containing a number of grounds for judicial review. These grounds include the Board’s failure to: make sufficient enquiry; give him sufficient chance to arrange the relevant evidence for the appeal; give proper weight to the presence of state acquiescence in that he was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles, the enemies’ collusion with the police and the COI supporting his claim. He also made general allegations of unfairness and irrationality in the Decision. In his supporting affirmation, he said he disagreed with the Decision of the Board. 17.After the legal principles in the preceding section had been explained to him, the Applicant confirmed he had no complaint about error of law, procedural unfairness or irrationality. He only wished to ask for time to adduce additional evidence to support his claim. He said his brothers were connected to the murderers and had a land dispute with him. His father died in an accident in 2019 orchestrated by the murders and his brothers blamed him for their father’s death. Now, his brothers and their wives are against him. He produced two letters written in Urdu and a prescription for his wife’s illness as supporting evidence. 18.The Applicant was taken through the grounds he asserted in his Form 86 one by one. He said he was satisfied with the way he was treated by the Immigration Department and had no complaint about procedural unfairness and irrationality. He explained that the grounds stated in his Form 86 were prepared by someone on his behalf after he told that person about his case. He has no knowledge about those grounds, does not understand them and now having been explained about those grounds, he does not agree with them. He repeated his only wish is to ask for time to adduce the new evidence. Discussion 19.The new evidence he intended to collect and then adduce would add nothing to his case. This is because the Board wholly accepted his case of risk of harm from the murderers and the victim’s family as he asserted. The new evidence would add nothing to his case. His land dispute with his brothers, his brothers’ animosity against him and the blame they put on him for their father’s death would add nothing to the risk of harm from the murderers or the victim’s family. Furthermore, even on the basis of the factual case as he asserted, the Board found he is not entitled as a matter of law to protection under any of the four applicable grounds. 20.His assertion in his supporting affirmation that he disagreed with the Decision is a direct challenge of the Board’s finding that on the facts of the case as he asserted he is not entitled to protection under any of the applicable grounds. Since this finding was made on the basis of the facts as he asserted, the Applicant could have no complaint about the Board’s finding of fact by accepting his evidence. The issue raised by this ground is whether the Board erred in applying the law applicable to non-refoulement protection under the USM to the facts as he asserted. 21.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. Furthermore, on the basis of authoritative and credible COI, the Board was satisfied that adequate state protection is available to reduce or prevent the risk of harm, should the risk turns out to be real and that internal relocation is a viable option to avoid the risk. These are 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. Again, the Court could not find any error of law in the Decision or procedural unfairness in the making of the Decision. 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. Conclusion 22.For the above reasons, the Applicant’s application for leave to apply for judicial review is refused. Dated 11th day of March 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 [1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [4] Risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [5] [2018] HKCA 524 at [14(1)] | |||||||||||||||||||||||||||||||||||||
Cases cited in this judgment