SARFRAZ RAJA vTORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2008/2018

[2022] HKCFI 60

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2008 of 2018

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.     This is the applicant’s application for leave to apply for judicial review of the Decision dated 11 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (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 (“RHC”), the matter is dealt with on paper.

3.     Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.     The applicant is a citizen of Pakistan.  He entered Hong Kong illegally on 20 May 2015 and was arrested on 24 May 2015.  On 26 May 2015, he lodged a non-refoulement claim. 

5.     The applicant claimed that if refouled, he would be harmed or killed by Mohsin Bhatti (“MB”) of Pakistan People’s Party (“PPP”), Adnan Ajmal (“AA”) and a federal investigation agency inspector Farooq Latif (“FL”).  According to the applicant, he was involved in a road dispute with MB in around July or August 2013.  He was punched, kicked and slapped by MB’s followers.  Thereafter, he was also involved in a house dispute with AA and FL. On 22 April 2014, he was abducted by four or five men and the day after he was forced by AA to stamp his finger print on some documents.  He was kidnapped for more than 7 days.  Despite the applicant’s family reporting to the police, the applicant believed that AA was connected to the local police.  The applicant also claimed that AA sent someone to shoot him.  Although he escaped, the applicant feared that he would be harmed by AA.  Thus, he fled to Hong Kong for protection.  Details of his story are set out in paragraphs 5-51 of a Notice of Decision dated 26 October 2015 of the Director (“the Director’s First Decision”) and paragraphs 25-83 of the Board’s Decision.

The Director’s Decisions

6.     The Director considered his application in relation to the following risks:

a.     risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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”). 

7.     By the Director’s First Decision, the Director refused his claim on the grounds of Torture risk, BOR3 risk and Persecution risk for the reason that his claim was not substantiated.  The Director found that the level of risk of him being harmed or killed by MB, AA or FL upon refoulement was assessed to be low [59]-[62]; that state protection was available to him [63]-[67] and that internal relocation was an option open to him [68].  In a Notice of Further Decision dated 17 March 2017, the Director also rejected the applicant’s claim on BOR2 risk (“the Director’s Second Decision”).  For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

The Board’s Decision

8.     The applicant appealed the Director’s Decisions to the Board.  He appeared before the Board on 31 May 2017 and gave oral evidence [12]. 

9.     By the Board’s Decision, the Board affirmed the Director’s Decisions and dismissed his appeal.  The Board evaluated the applicant’s evidence against his oral testimony, and found that the applicant’s evidence on the material aspects of his claim were far-fetched, speculative and inherently implausible.  On the totality of the evidence, the Board found that the applicant did not give a true account of the events [85]-[94].  The Board also examined the documents submitted by the applicant.  It found that the documents, such as the loan document, were inconsistent with the applicant’s own evidence and also self-serving [95]-[101].  Further, in light of the Board’s finding on credibility, it was also not persuaded that the applicant had suffered any harm from his alleged enemies [102]-[103] and thus he would not have any risk of harm if refouled [104]-[105].  As a result, the Board concluded that the applicant failed to establish his non-refoulement claim on all applicable grounds [106]-[116].   

Application for leave to apply for judicial review

10.     The applicant filed Form 86 dated 21 September 2018 for leave to apply for judicial review of the Board’s Decision.

11.     In his affirmation in support of his application, he said that he wanted to stay in Hong Kong because he was not fine in his country.  His family advised him stay in Hong Kong.

DISCUSSION

12.     The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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 CA.  §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

14.     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.”

15.     He has submitted no valid ground to assist his application.  The Board has rejected his evidence on the facts of his claim.  He therefore has no factual basis in support of his claim.

16.     The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.     There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18.     I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  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