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

HCAL 1594/2019

[2024] HKCFI 1082

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1594 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 the Applicant being absent in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 11 June 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 30 May 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 12 July 2018 (the “Notice”).

2.The Applicant is a Pakistani national. He entered Hong Kong illegally in October 2006 and was arrested on 29 November 2006. Then he raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 2 December 2006. His claim was rejected by the Director on 5 November 2012. His petition to the Board against that decision was dismissed on 28 November 2012. That decision became final.

3.Following the implementation of the Unified Screening Mechanism (“USM”), the Applicant’s claim was also assessed on all applicable grounds under the USM other than torture risk ground, namely BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3]. By the Notice, the Director rejected his remaining claims. The Applicant appealed against the Notice. His appeal was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.

4.The Applicant had requested an oral hearing. A hearing was scheduled and notice of hearing was sent to him by post on 26 February 2024 to his address as stated in his Form 86. It has not been returned through the post. He had never informed the court of any change of his address. There is nothing to suggest he had not received the Notice or had moved. A court staff had telephoned him on the afternoon of the day before the hearing. He did not respond. All reasonable efforts had been made to notify him of the scheduled hearing. However, he did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

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 claimed that he will be harmed by members of the Muttahida Qaumi Movement (“MQM”), a political party, upon his return to Pakistan because he supported a rival political party, namely Pakistan People’s Party (“PPP”).

6.The Applicant, now aged 46, was born and raised in Punjab, Pakistan. He received eight years of education and has worked for seven years as a delivery man and a salesperson in a milk shop. He moved to Karachi in 1995 to work in his uncle’s milk shop. He married his first wife in 1996 and lived in Hong Kong for three years. They divorced in 1999 and he returned to Karachi, Pakistan.

7.Between 1995 and 2006, he supported the PPP and assisted the party as required (save for the years when he was living in Hong Kong). The MQM won the election in 1996. Since then, its members began harassing members of the PPP.

8.The first major incident occurred on 8 November 2005 when MQM members opened fire at a PPP administrator to terrorise PPP supporters. The administrator’s guard, who was a policeman was shot. The Applicant and the administrator escaped uninjured. He reported the incident to the police, but the police refused to take any action due to their affiliation with MQM.

9.The second incident occurred in 2006 when MQM members came to Melunoodabad, Karachi and fired into the air in an attempt to terrorise PPP supporters. They attacked the Applicant and other PPP workers with sticks and stones. The assault lasted about 15 to 20 minutes. The Applicant sustained wounds to the head and back. He was hospitalised for one week. He reported the incident to the Kemari Police Station, but again no action was taken.

10.The third incident occurred when the Applicant was mistakenly believed to have been involved in a fight with MQM members in North Nazimbad. Some MQM people visited the house of the Applicant’s uncle to look for him, but he was out for work at that time. They told his uncle and aunt that they would kill the Applicant. The Applicant briefly relocated to Attock to avoid them. He returned to Karachi after about two weeks.

11.The fourth incident occurred between 2005 and 2006 when about 10 to 15 MQM members went to the milk shop operated by the Applicant’s uncle. They fired in the air and beat the Applicant with sticks. When his uncle tried to protect him, his uncle was also assaulted. They warned the Applicant against saying anything bad about MQM. The attack lasted approximately 20 minutes. The Applicant was hospitalised for one day. He and his uncle made a police report, but the police seemed uninterested in registering their complaint.

12.Then the Applicant fled to Hong Kong. He claims that internal relocation within Pakistan is not viable as he believed MQM will remain powerful and in control in many regions and has extensive network. He believes the authorities in Pakistan will be unlikely to protect him because they were corrupt.

The finding of the Board

13.The Board found the Applicant’s account consistent and credible. It assessed his claim on the basis of the case as he asserted, but found he would not be at risk of any of the proscribed harm upon his return to Pakistan for the following reasons. First, the MQM members had the opportunity to seriously harm or even kill him but refrained from doing so, evidencing that they had no intention to kill or seriously harm him. Second, the Applicant did not seem to think he would face grave danger from the MQM, as he returned to live with his uncle after the second and third incidents and despite the fact that the MQM knew he was living with his uncle. Third, the Board did not accept that the MQM members were acting with the authority of the government during the four incidents when he was attacked or that they would be interested in harming him as he was only a relatively low-tier worker for the PPP. Fourth, the Board also held on the basis of authoritative and credible country of origin information (“COI”) that adequate state protection will be available to the Applicant on his return to Pakistan and that he can further avoid the risk of harm by internal relocation.

14.Having made the above finding, the Board found that the Applicant had failed to establish that he will be subject to any of the proscribed risks of harm upon his return to Pakistan. Applying the law applicable to the non-refoulement protection under the USM to the above facts, it found the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the 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[4].

Grounds for judicial review

16.The Applicant did not advance any grounds for judicial review in the Form 86. He filed an eleven-page supporting affirmation making various allegations, some of which may be regarded as complaints on errors of law, procedural unfairness and irrationality in the Decision. These allegations include:

(1)  the Board failed to make full and proper inquiries into COI, cherry picking COI to support the Decision, “failure to state where the [Board] preferred the COI material which support [its] own position over the material which content it” and “failure … to properly assess [his] case in light or (sic) COI material and to properly conduct an analysis of the COI material itself”, and that the police are corrupt and ineffective (paragraph 18 and 30 of the affirmation);

(2)  lack of legal representation before the Board (paragraphs 19 and 27 of the affirmation);

(3)  rejecting his claim for the sake of rejecting any non-refoulement claims without consideration of its merits (paragraph 20 of the affirmation);

(4)  lack of language assistance, documents were not explained to him (paragraphs 23 and 24 of the affirmation);

(5)  breach of the high standard of fairness in not affording him an opportunity to understand the content of the documents, it was insensitive and possibly unlawful that the Decision was written in English without providing him with language assistance, the Decision was not interpreted to him (paragraphs 25, 26, 31 32, 33 and 34 of the affirmation);

(6)  formula and biased approach in assessing his claim (paragraph 29 of the affirmation).

Ground (1) : Complaint relating to the COI

17.It is true that the Board did not quote each and every piece of COI that it had considered, did not explain how it resolved the differences in the COI and came to its conclusion. As mentioned in paragraph 36 of the Decision, the Board accepted the various COI referred to by the Director in his Notice of Decision. There were 16 different COI altogether. It quoted one COI, namely, the Country Reports on Human Rights Practices for 2017 published by the United States Department of State. It was from a credible and authoritative source. As indicated in Footnotes 1 and 2 of the Decision, this COI revealed information indicating police corruption and impunity which is favourable to the Applicant and the government’s effort to restructure the police and to improve its effectiveness and yielded positive results which offset the formal adverse information. This is obviously the major COI which the Board gave weight to. What to accept in a piece of COI, what not to accept and the amount of weight to be given to a piece of evidence is obviously a process of cherry picking. A Board weighs the contradicting information in the different pieces of COI and uses its best judgment to come to a decision as to what to accept and not to accept, just as a farmer would exercise his best skill and ability to pick among all the cherries in the field those which are ripe and put them under different price categories. This is a finding of fact solely within the realm of the Board. Sometimes, the choice may capable of rational thinking which may be expressed in writing. Sometimes, the reasoning may not be easily capable of being reduced into writing. So long as the Board has considered all that is relevant and has not taken into account what is not, its choice cannot be criticised as an error of law, procedural unfairness or as irrational. It is a finding of fact which is beyond challenge by way of judicial review. The Applicant has not given any particulars as to how and why the Board had erred.

Grounds (2): Lack of legal representation

18.As was held by the Court of Appeal in Re Zafar Muazam[5], Re Zunariyah[6], Re Zahid Abbas[7], Re Tariq Farhan[8], and Re Lopchan Subash[9], neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[10] nor the judgment of FB v. Director of Immigration[11] 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 real question is whether the claimant is prejudiced for want of legal assistance.

19.The Applicant had the benefit of legal representation in preparing his non-refoulement claim form, in attending the screening interview and presenting his case to the Director. He had no complaint about lack of legal assistance up to that stage. His complaint is that he had no legal assistance thereafter. 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, the NCF 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. 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 the circumstances, nothing amiss arose from the non-availability of legal representation in the hearing before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board.

Ground (3) – His claim was rejected for the sake of rejecting it without consideration of merits

20.This claim is lacking in particulars. For reasons as will be explained in the overall scrutiny of the Decision below, there is no merits in this ground.

Ground (4) and (5) – Lack of language assistance and breach of high standard of fairness

21.The Applicant complains that the hearing bundle is in English with which he is not familiar, that he could not understand what is contained in the bundle, that he could not understand the Decision and why his appeal was dismissed. In Karamjit Singh[12], the Court of Appeal held that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, he has to live with or cope with his language disability. He cannot expect to have the luxury of any documents to be fully translated into his native language for his benefit as and when he requires. He has to find assistance himself from among his friends and his ethnic community. There is a sizeable Pakistani community in Hong Kong. Indeed, the Applicant was able to file an adequately well written affirmation in English.

22.Furthermore, the hearing bundle is basically made up of his NCF, the record of his screening interview, and the Director’s Notice of Decision and the COI. He knows what is contained in his NCF which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service. He knows what is contained in the record of screening interview which he attended with the assistance of interpreter and legal representation. The record had been read back to him in his own language and he signed to acknowledge that he understood and agreed with its contents and that no amendment was necessary. Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips and now complains about lack of language assistance.

23.The Notice and COI are in English and unfortunately have not been translated. The Duty Lawyer Service had most probably discussed the contents of the COI with him when representing him before the Director. Most probably, it had explained the Notice to him and also discussed with him about the prospect of success on appeal. In any event, as mentioned above, he should not do nothing. He has to find assistance himself from among his friends and his ethnic community. The Notice was issued in 12 July 2018. The oral hearing was conducted in 30 November 2018. In between, he had three and half months to find out what the appeal bundle is about, if he was at all serious in pursuing his non-refoulement claim. He should not do nothing and expect the host country would translate the documents to him as and when he requires as if he were a guest waiting to be served at the dinner table.

24.As for his complaint that the Decision was written in English and he could not understand, it is difficult to see how it would have any bearing on the issue whether the Decision is reviewable because of error of law, procedural unfairness or irrationality. Even if the Decision were translated to him, it could not undo the Decision which was already made. His suggestion that the Decision would probably be unlawful is ridiculous. He did not explain how and why a decision made by a competent authority in an official language of the jurisdiction where the decision was made could be unlawful. Furthermore, annexed to the Decision is a note written in various languages, including Urdu which he claimed he was familiar with. The note advised him to contact his case officer during office hours on the telephone number shown on the covering letter of the Decision, if he has any enquiries regarding the Decision. He will have access to interpretation if he followed the advice. The issue of procedural unfairness raised by the fact that the Decision was not accompanied by a translation in the Applicant’s first language has been disposed of in paragraph 21 above.

Ground (6) - formula and biased approach in assessing his claim

25.This ground lacks particulars and evidential basis as to what is the bias alleged. Assuming the Applicant meant the Decision is written in a similar format as the decisions issued in respect of other decisions, the question remains what is wrong, inappropriate or unfair about that. The decisions of different adjudicators vary as a matter of personal style. There may be some standardisation in the notices prepared by different immigration officers and decisions by the different adjudicators. Such standardisation may be useful to ensure consistency in treatment and, more importantly, that nothing which ought to have been considered has been left out. No serious complaint could be made of such standardisation or “formula approach” as the Applicant called it. The real issue is whether all the issues raised by the appeal have been identified and properly dealt with. Having read the Decision, the Court is satisfied that the Board had correctly identified the issues raised by the appeal and properly dealt with them. It can hardly be argued that the Decision is anything other than a tailor-made one to meet the issues raised in the appeal. There is no substance in this complaint.

Overall scrutiny of the Decision

26.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. 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. Obviously, the Board approached the Applicant’s claim on the basis of his evidence and made its finding afresh. There is nothing to suggest the Board was just endorsing or rubber stamping the Director’s decision in the Notice.

27.The Board assessed the Applicant’s claim on the basis of the case as he asserted. These are the Board’s finding of facts which the Applicant could have no complaint. It was on the basis of these facts, that the Board further found he is not entitled to non-refoulement protection under any of the four applicable grounds. These are mixed finding of facts and of the law. Insofar as they are finding of fact, they 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. Insofar as they are finding of the law, they are absolutely correct. 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. Furthermore, on the basis of authoritative and credible country of origin information, the Board is satisfied that adequate state protection and internal relocation are available to prevent or avoid the risk if it turned out to be real. These are also finding of fact which the Court on a judicial review will not interfere. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

28.For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.

Dated 18^th day of April 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