Pirzada Arooj and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1597/2019

[2024] HKCFI 1431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1597 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:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicants’ 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 10 May 2019 (the “Decision”) dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 28 July 2017 (the “Notice”).

2.They had 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 their application may be justly determined on paper without an oral hearing.

3.The Applicants are Pakistani nationals. The Applicants, their two younger siblings and their parents (ie the “father” and “mother” when referred to separately, and collectively, the “family”) entered Hong Kong on 15 March 2012. They were refused permission to land. Thereupon, they raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”). Their Torture Claim was rejected by the Director on 26 October 2012. Their appeal to the Board was dismissed on paper on 29 November 2012. That decision became final. Following the implementation of the Unified Screening Mechanism (“USM”), their claim was further assessed on BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk ground[3]. By his Notice dated 28 July 2017, the Director rejected their claim under those grounds.

4.They appealed the Notice by way of two separate petitions with the two Applicants in one appeal and their parents and younger siblings in another. Both appeals were heard at the same time before the Board constituted by the same adjudicator. By its Decision dated 10 May 2019 the Board dismissed the Applicants’ appeal, which is the subject matter of this leave application. By a separate decision, the Board also dismissed the appeal of the Applicants’ parents and their younger siblings.

The Applicants’ case

5.The 1^st and 2^nd Applicants were respectively aged 18 and 16 when they arrived at Hong Kong in 2012. They stayed in Hong Kong since then. They are now respectively 30 and 28 years old and are married to Hong Kong residents. The 1^st Applicant’s claim for protection rested on the same basis as her parents’ and siblings’, ie the alleged fear of harm from the Muslim community due to their father’s past association with Shi’a Muslims and his conversion to Christianity. This was the only basis she relied on for claiming protection. The 2^nd Applicant did not expressly rely on the alleged harm from the Muslim community. He simply asserted that “anything could happen [to him] in Pakistan”. The underlying basis of his fear is also his father’s past association with Shi’a Muslim and his conversion to Christianity.

6.The Applicants and their family claimed that they were originally Sunni Muslims. When their father was about 18 or 20, he began to socialise with Shi’a Muslims which led to him being abducted, detained, assaulted and repeatedly raped in Lahore in 1994. Then, his father went to South Korea to work between 1996 and 1998 and became interested in Christianity. After their father was deported to Pakistan in 1998, he still faced harassment. He narrowly escaped being shot at in Faisalabad in 2004. He was abducted off the street in Rawlapindi in 2005 and sold to the Taliban who raped and mistreated him for ten days before he managed to escape.

7.Between 1998 and 2007, their father travelled in and out of Hong Kong including on at least three occasions when he entered Hong Kong without permission. He was sentenced to a total of 40 months’ imprisonment. Their mother claimed that while their father was away, the rest of the family faced harassment and had to move from place to place, including Lahore, Karachi, Rawalpindi, Islamabad and Faisalabad.

8.Their father became a Christian in Hong Kong in 2010 or in Korea in 2009 under another version of their father’s evidence and the family became even more discriminated against by the Muslims. Their relatives did not support them. Some even threatened to kill their father. In 2011, the Applicants’ mother received a phone call informing her that a family member was deliberately injured by a motor rickshaw. Then, the family came to Hong Kong in March 2012.

The finding of the Board

9.The Applicants’, their parents’ and their younger siblings’ appeals were heard together. The Applicants were unrepresented but their parents and younger siblings were. The Applicants and their parents testified before the Board. They relied on their own evidence and the evidence of each other in support of their respective appeals. When considering the Applicants’ appeal, the Board also took into consideration the submission by the counsel representing their parents and their younger siblings.

10.The Applicants’ claim is essentially founded on their father’s, ie their father’s past association with Shi’a Muslims and his conversion to Christianity. The bulk of the evidence came from their parents, particularly their father. Apart from the risk of harm facing their father, the Applicants have no other fears in returning to Pakistan. The Board identified numerous inconsistencies among their testimony before the Board and their evidence before the Director. It also found numerous inconsistencies as between the father’s and the mother’s testimony. These inconsistencies have been analysed in detail in paragraphs 44 to 89 of the Decision. It found the evidence from their parents in particular about a number of key aspects of their claims was confused, inconsistent over time, difficult to understand and far from convincing. The Board therefore had concerns about the reliability of their evidence. The following are examples of the different concerns the Board had about their father’s evidence.

11.Their father gave inconsistent account as to when he was converted to Christianity and the circumstances when his parents’ family came to know about the conversion. He said in his Supplemental Claim Form that he began to attend the Vine Church in Hong Kong in 2009 and his brothers-in-law who were in prison told their family members in Pakistan about that in 2010. However, at the appeal, he told the Board a wholly different account. He said he had changed his religion while he was in South Korea as early as 1998 and that his brother-in-law with whom he was living between 1998 and 2000 informed his family when the brother-in-law discovered he was practising Christianity. He insisted that his wife and family knew about his conversion in 2000 because from that time onwards he was at risk of harm in Pakistan arising from the conversion. His explanation for the inconsistency is that ‘he is only human and sometimes he forgets things’. The Board considered his conversion is a key aspect of his claim and if it is his true experience he would not have given such inconsistent account as to how it happened and when it happened. It rejected his explanation as far from convincing.

12.The Board also found his father’s evidence about his involvement in Christianity in South Korea to be vague, confused, inconsistent, difficult to understand and far from convincing. He could not explain how he became interested in religion and in Christianity and how he could communicate and participate in the church services as he could not speak Korean and the Koreans could not speak Urdu or English. The Board also found his knowledge about the religion vague, superficial, confused and far from convincing or from what might reasonably be expected from a person who claimed to have been practicing the faith and studying the bible for ten or on one account twenty years.

13.The Board found the underlying basis of their father’s case inherently improbable. It found it difficult to understand how their father’s conduct which did not include any form of proselytising or preaching or attempt to convert people or any related political or public activities would warrant such a high degree of adverse attention at the time or place. Their father’s responses were vague, general, confused and inconsistent in a number of aspects.

14.The Board had serious concerns about their father’s honesty, credibility and hence the reliability of his evidence. He had a history of repeated breaches of immigration laws in Hong Kong and other jurisdiction including making false statements to immigration officers and using false identity. Such conduct indicates a willingness and preparedness to knowingly circumvent and breach the law and obtain benefits by deception when necessary. That affected the Board’s assessment of his reliability as a witness and the overall credibility of his and his family’s claim.

15.Further, while claiming to have been ill-treated in Pakistan since 1994 and that he and his family were pursued by his enemies throughout Pakistan for over 13 years, their father did not claim protection in any of the countries he travelled to prior to 2007, including South Korea, Russia, China, Malaysia and Singapore or during any of his four previous trips to Hong Kong. Three of those trips to Hong Kong resulted in his detention and deportation which provided him the opportunity and impetus to tell immigration officers about his feared risk of harm returning to Pakistan. But he did not raise his claim for protection until his fourth or last trip when he was refused entry. That cast serious doubts on his motive and the credibility of his claim.

16.The Board found the Applicants’ parents were unreliable witnesses who had fabricated, embellished and exaggerated their evidence to support their claim for protection. It did not accept their father’s evidence and rejected his claim that he was ever targeted by a group of Sunni Muslim fundamentalists or any other person or group in Lahore or anywhere else in Pakistan for reasons of his association, friendship and/or involvement with Shi’a Muslims or the Shi’a community or his alleged conversion to Christianity. It did not accept that the Applicants or their parents or siblings were ever harassed, intimidated, abducted, detained, mistreated, assaulted, abused or threatened in any way or form by Sunni Muslim fundamentalists or any other persons or groups. It did not accept the medical certificate and supporting documents about the claimed injuries sustained by the 2^nd Applicant and other members of the family were caused by or in any way claimed and described by them or their parents. The Board did not accept that their father would, or would wish to practice his religious beliefs in accordance with the doctrines and principles of Christianity on his return to Pakistan and found that none of the members of the family would face harm from Sunni Muslims upon their return to Pakistan.

17.The Board also found the 2^nd Applicant’s claim that “anything could happen in Pakistan and there [was] no guarantee he would be safe”, to be a mere speculation and lacking in detail. It found there was no objective evidence to suggest either Applicants would suffer any of the proscribed risks of harm upon their return and his claim based on this assertion also failed.

18.In respect of BOR 3 Risk and Persecution Risk grounds, the Board found there were no substantial grounds to believe that the Applicants would face a risk of being subjected to harm that would attain the minimum threshold level of degrading treatment or punishment, or torture or cruel or inhuman treatment or punishment, if they return to Pakistan in the reasonably foreseeable future.

19.In respect of BOR 2 Risk ground, the Board did not accept that there are substantial grounds to believe that the Applicants face a real risk of being subjected to the death penalty or being arbitrarily deprived of their life in any of the claimed circumstances or situation or for any other reason. The evidence and information before the Board did not indicate or suggest that the humanitarian conditions in Pakistan are so dire as to render refoulement a violation of the Applicants’ right to life.

20.Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicants had failed to establish the factual basis to support their claims for protection under any of the three remaining applicable grounds under the USM. Hence, it dismissed their appeal against the Director’s Notice.

Legal principles applicable to judicial review

21.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

22.The Applicants did not advance any grounds for judicial review in the Form 86. In their supporting affirmation, they reiterated that their lives and their spouses’ would be in danger in Pakistan. They emphasised that their respective spouse is applying for dependent visa for them. That is not a valid ground for challenging the Decision. The essence of their ground is that they disagreed with the finding of the Board that it is safe for them to return to their home country. In effect, they are seeking to challenge the Board’s finding of fact that they and their parents were not credible witnesses and that they would not face any real harm or risk if returned to Pakistan. That is not permissible in a judicial review. In the absence of proper or 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.

Discussion

23.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 Board found the Applicants’ parents’ evidence, on which their claim is founded, incredible, fabricated and embellished to support their claim. It rejected their evidence. The Applicants had therefore failed to establish the factual basis in support of their claim for protection. As they bear the burden of proof, albeit on a low standard, this finding is necessarily fatal. It was on that basis that the Board found that the Applicants had failed to prove his entitlement to non-refoulement protection under any of the remaining three applicable grounds under the USM. These are finding of facts which 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. 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.

Conclusion

24.For the above reasons, the Applicants’ application for leave to apply for judicial review is refused.

Dated 24^th day of May 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