ABDUL GHAFOOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS [Decision on Leave Application]

HCAL 803/2018 [2021] HKCFI 570 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 803 of 2018 BETWEEN Abdul Ghafoor and Applicant Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Putative Respondent Director of Immigration Putative Interested Party 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 oral submission by the Applicant in open court. Order by Deputy High Court Judge C P Pang: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction The applicant, born in 1976, is a national of Pakistan. On 11 November 2015, he surrendered himself to the Immigration Department after he had entered Hong Kong unlawfully. He then lodged a non-refoulement claim. He was subsequently released on recognizance. The Director of Immigration (“the Director”) refused the applicant’s claim. The Torture Claims Appeal Board/ Nonrefoulement Claims Petition Office (“the Board”) confirmed the decision of the Director. The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [29-37] of the decision of the Board. Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by the family of one nicknamed Baggi in revenge for Baggi’s murder by the applicant’s brother-in-law, Salim. He claimed that Salim killed Baggi in 2011(when he was not in Pakistan). Salim was on bail and then could nowhere to be found. Baggi’s family had been trying to locate Salim so they could personally take revenge on him. As Salim was in hiding, the applicant became the target of Baggi’s family ever since he returned to Pakistan in 2012. They had been requesting that he find Salim and even asked him to kill Salim. One day in July 2014, when he was riding his motorcycle with his friend, somebody opened fire at them. He reported the incident to the police but they ignored him. He later came to know that the attack on him was staged by Baggi’s family and they would kill him next time. He therefore decided to go into hiding in a place away from his village. In 2015 Salim was sentenced to imprisonment of 25 years. However, Baggi’s family was not satisfied with the outcome of the case and wanted to take justice into their own hands. In fear of his safety, the applicant left Pakistan. He claimed that if he were to return to Pakistan, he will be the target of revenge; and he does not believe that the police would protect him. The Director’s Decision By a notice of decision dated 17 July 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that there was no substantial ground for believing that the claimed risk of harm is real and foreseeable. The Director assessed the level of future risk of harm as low. He also found that the availability of reasonable state protection and internal relocation option would further lower or negate the perceived risk of harm. The decision covered torture risk, BOR 2 risk, BOR 3 risk, and persecution risk. The applicant lodged an appeal/ petition to the Board against the Director’s decision. The Board’s Decision The applicant attended a hearing before the Board on 14 December 2017. By a decision dated 4 May 2018, the Board rejected the appeal/ petition confirming the Director’s decision. The Board’s decision covered all applicable grounds. The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [38-49] of its decision. The Board’s reasons can be summarized as follows: the evidence given by the applicant in respect of the central issue, i.e. the alleged murder, was vague and limited [40]; his evidence was contradictory [41]; there was a number of inconsistencies in his evidence confirming that the applicant’s claims are not credible [44]; the Board found the applicant not a witness of truth and it did not accept any of his claims as credible [48]; it did not accept that Baggi’s family had pursued the applicant or his family had experienced any problems or harm from Baggi’s family [48]; there is not a real risk the applicant would face any of the proscribed forms of harm should he return to Pakistan [49]. Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds. Application for leave to apply for judicial review The applicant filed a Form 86 on 8 May 2018 for leave to apply for judicial review of the decision dated 4 May 2018, which was the date of the decision of the Board. While he named the Director as the respondent in the Form 86, it is apparent that the intended judicial review is against the Board. I will deal with the application on this basis. No request for oral hearing has been made. The applicant also confirmed by his letter received by the court on 14 September 2020 that he had no further submission to make. The application is therefore considered on the papers. In the Form 86 and supporting affirmation, the applicant stated that he was not satisfied with the decisions of the Director and the Board and that his life is in danger in Pakistan. Discussion The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board. When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will nevertheless examine the decision of the Director, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision. In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and found him to be an incredible witness. The Board rejected his account of primary facts based on the major inconsistencies and contradictions in his evidence. On the factual findings, there would be no factual basis in support of any of the applicable grounds. As explained above, the assessments of evidence and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so. The Form 86 and supporting affirmation contained nothing to demonstrate that the Board was unfair or unreasonable in the public law sense. The bare allegation that his life is in danger cannot constitute a viable ground. I do not find any reasonably arguable basis to challenge the findings of the Board. Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in their decisions. Nor do I see any failure on their part to apply high standards of fairness. For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review. Disposition Accordingly, leave to apply for judicial review is refused. Dated 18 March 2021 (Chung Lai Fan, Christine) for Registrar, High Court 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 Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must: serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). Sent to the Applicant on 18 March 2021 Abdul Ghafoor Applicant’s ref. no: Nil. Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 18 March 2021 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 7958/17/7/339/P1558 Director of Immigration Putative Interested Party’s ref. no.: RBCZ 10728/17 Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) Form CALL-1