AWAIS MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1512/2019

[2024] HKCFI 1344

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1512 of 2019

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 absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 25 April 2019 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 did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

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 30, is a Pakistani. He entered Hong Kong illegally on 23 June 2013 and was arrested by the police on 15 April 2014 for overstaying. The applicant made a non-refoulement claim on 19 April 2014. The claim was made on the basis that, if refouled, he would be harmed or even killed by a group of Shia Muslim in his locality (“Shia group”) and a group of Wahabi (“Wahabi group”).

5.  According to the applicant, he and his family members were Sunni Muslims. In around November to December 2012, during the holy month of Muharram, a priest from the Shia group made insulting and degrading statements about Sunni Muslims through a loudspeaker in a local mosque. His followers were also heard over the loudspeakers for using foul language against the Sunni Muslims. The applicant and some of his neighbours were angry about such statements. So they went to the mosque to confront the Shia group. An intense argument then ensured between the two groups. Suddenly, the Wahabi group arrived to join the Shia group and started assaulting the applicant’s group, during which the applicant’s arms were injured. The applicant’s group were outnumbered and they fled the scene. The applicant then went to a clinic have his wounds treated. He also made a report at the local police station, but they refused to lodge a report. He then tried to report at another police station, but was told that he should make the report at the police station in his locality.

6.  About a week later, 8-10 members of the Shia group attempted to intercept the applicant and shouted death threats to him while he was returning home on his motorbike. The applicant managed to escape, but the same thing happened again a month later. Thereafter, he hid at home most of the time. If it was necessary for him to go out, he would only return to his hometown very late in the evening to avoid being seen. The applicant reported the matter to the same police station, but the police again refused to lodge a report.

7.  In around May to June 2013, 12 members of the Shia group went to the applicant’s home. He escaped from his home at the rooftop while his father told the Shia group to leave. When the Shia group saw the applicant at the rooftop, they fired at him. The applicant managed to escape from the house and fled from his hometown. He made a report at the same local police station, in which he was told that his case would be investigated, but his report was not officially filed. Since then, the applicant randomly stayed at different places of his friends in Gujranwala city, which was 4-5 streets away from his hometown. He only returned home late in the evenings to avoid being seen. The applicant’s family and friends were concerned about his safety and advised him to leave the country. He therefore fled to Hong Kong in June 2013.

8.  The applicant maintained contact with his family since he left Pakistan. His father told him that the Shia group occasionally came to inquire the applicant’s whereabouts and his father was thinking about relocating elsewhere to avoid their disturbance.

9.  The applicant considered internal relocation within Pakistan not viable because the Shia group and the Wahabi group had network and connection in each and every city in Pakistan, so that he could be easily located. He also did not have connection and resources for relocation. The applicant was of the view that the police could not render any assistance to him as well because they had taken no action despite his report to them in the past. He thought that the Shia group and the Wahabi group were influential enough to have control over the authorities.

10.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 27 December 2017 (“the Director’s Decision”).

The Director’s Decision

11.  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”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low intensity and frequency of past ill-treatment from the Shia group and the Wahabi group indicated that the applicant did not face a real and imminent risk of harm upon his return to Pakistan [14]-[15]; (ii) state protection will be available to him upon his return [16]-[23]; (iii) internal relocation is viable [24]-[29] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [30]-[35], Persecution risk [36]-[41] or Torture risk [42]-[45].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board. On 15 October 2018, the Board conducted an oral hearing. During the hearing, the applicant claimed that the Shia group did not fire at him in around May or June 2013 when he escaped to the rooftop of his house. He was only informed later that firearm was used as he escaped.

14.  The Board noted that the only physical violence inflicted upon the applicant was the injury on his arms during the fight outside the mosque, which was far from attaining the minimum level of severity required. In any event, the problem the applicant encountered was merely a private dispute without state involvement [22]-[27].

15.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk, Persecution risk or Torture risk [4]-[16], [45]. Furthermore, state protection and internal relocation were also available to him [32]-[44].

16.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

17.  The applicant has filed Form 86 dated 3 June 2019 for leave to apply for judicial review of the Board’s Decision.

18.  The applicant had set out his grounds in support of his application in his affirmation and attached a litany of laws and authorities. I shall summarize his main complaints against the Board as follows.

(1)  There is no reasonable basis to reject his credibility.

(2)  Failing to consider the extended form of state acquiescence.

(3)  Failing to consider the relevant country of origin information (“COI”) in relation to his case.

(4)  The adjudicator is a different person other than the immigration officer.

(5)  Cherry picking the COI.

(6)  Failing to consider the consistent system of human right violations of this country.

(7)  Failing to consider state protection in his country.

(8)  Failing to call for the psychological and the psychiatric reports on him.

(9)  Applying the wrong standard of proof.

(10)  No proper basis to consider the issue of internal relocation.

DISCUSSION

19.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

20.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

21.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

22.  For reasons given by the Board above, the Board did not accept the applicant’s evidence on the facts of his claim and the Board dismissed his claim on all the applicable risks.

23.  Grounds (1), (2), (3), (5), (6), (7), (9) & (10) are his bare personal opinions without any evidence in support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

24.  As to ground (4), there is nothing amiss that the adjudicator was a different person as the Board is another tribunal to supervise the work of the immigration officer. Ground (8) is a non-point as the applicant has not raised this issue before the Board.

25.  There is no reason that the Court should interfere with the Board’s Decision.

26.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

27.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

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