MAJEED ABDUL v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2028/2018

[2022] HKCFI 66

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2028 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 21 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Second Decision”), which is on BOR 2 risk.

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 national of Pakistan.  He last entered Hong Kong on 30 November 2011 and was arrested by the police.  He lodged a torture claim on 3 December 2011.  Upon the commencement of the unified screening mechanism, his torture claim was taken as a non-refoulement claim and was assessed on all applicable grounds. 

5.     The applicant claimed that, if refouled, he would be harmed or killed by people from the Pakistan People’s Party (“PPP”) because he refused to join them.  According to the applicant, he was a supporter of Pakistan Muslim League (N) (“PML(N)”).  In around 1995, his enemy Chaudhary started approaching him through his neighbour and asked him to join the PPP.  Upon his refusal, Chaudhary’s followers attacked him.  Later in 1996 and 2011 respectively, the applicant was assaulted on four or five occasions by Chaudhary’s men.  Out of fear, he fled to Hong Kong for protection.  While he was in Hong Kong, he learnt that his brother died from food poisoning, the suspect was Chaudhary. Details of his story are set out in paragraph 12 of a Notice of Decision dated 2 September 2015 of the Director (“the Director’s First Decision) and paragraphs 21-42 of the decision of the Board dated 15 February 2017 (“the Board’s First Decision”) described below.

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 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 PPP members upon refoulement was assessed to be low [18]-[22]; that there was no official involvement [23]-[29]; that state protection was available to him [30]-[32] and that internal relocation was an option open to him [33]-[35].  In a Notice of Further Decision dated 7 March 2017, the Director also rejected his claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return to his home country.

The Board’s Decisions

8.     The applicant first appealed the Director’s First Decision to the Board.  An oral hearing was held on 11 April 2016, during which the applicant gave evidence before the Board.  The Board considered the applicant’s case and the relevant country of origin information (“COI”).  It found that the applicant was evasive during cross-examination. More importantly, his evidence on the political aspects of the claim was not corroborated by the COI.  For example, Chaudhary became a member of PMN-Q in around 2002 which was a minority political group at the material time. It also found that the applicant failed to give clear evidence of the attack towards him and his son in 2011.  The overall inconsistences led to the Board’s refusal to accept him as a credible witness [51]-[64].  In addition, the alleged injuries did not attain to the level of severity to be classified as “torture” and there was no evidence of state involvement.  For these reasons, the Board concluded that the applicant’s non-refoulement claim on Torture risk, BOR3 risk and Persecution risk failed [65]-[80]. 

9.     On 14 March 2017, the applicant appealed the Director’s Second Decision to the Board.  By the Board’s Second Decision, the Board concluded that, since the applicant did not provide any additional information and in light of the Board’s First Decision, his appeal against the Director’s Second Decision also failed.

Application for leave to apply for judicial review

10.     The applicant filed Form 86 dated 26 September 2018 for leave to apply for judicial review of the Board’s Second Decision.

11.     In his affirmation in support of his application, he said that he could not go back to his country because his life was not safe.

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.

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