NADEEM IRFAN v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 507/2019

[2021] HKCFI 3738

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 507 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
	cconsideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

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 Director’s Decision dated 10 April 2017 and Decision dated 1 February 2019 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”), I shall deal with his application 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.

4.  As the applicant had appealed the Director’s Decision to the Board, the Director’s Decision is not subject to judicial review. Re Moshsin Ali [2018] HKCA 549, §45.

The applicant

5.  The applicant is a citizen of Pakistan. He came to Hong Kong as a visitor on 21 December 2013.  He overstayed and was arrested by police. During his detention in the detention centre of the Immigration Department, he lodged refoulement claim with the Immigration Department by way of written representation dated 4 July 2016.

6.  He claimed that if refouled, he would be harmed or killed by people of the Pakistan Muslim League (N) (the “PML(N)”) in his locality and also by his friend who asked him to join PML(N) and he refused to do so.  He also feared that he might be arrested by police on a fabricated charge by the PML(N) members for the offence of firing gunshots in the public area.

7.  The incidents leading him to leave Pakistan for Hong Kong happened during a period of 7 months as from May 2013 to December 2013.  During this period of time, he refused to join the PML(N) as members of this party tried to persuade him to do so.  Then, he was arrested by police for the offence of firing gunshots in the public, which he did not do.  He believed the charged was fabricated by people of the PML(N).  He was detained in police station overnight.  He was threatened by the police officers there, telling him to join the PML(N) or his family would be in trouble.  His friend, Babar bailed him out with the service of a lawyer.  He moved to live in Lahore where Barba lived.  Barba later told him to move to Karachi.  He did so.  In Karachi, Barba also persuaded him to join PML(N).  He refused.  Barba, together with other people, assaulted him.  He escaped.  He decided to flee Pakistan for Hong Kong, where his friend told him would provide him with asylum.

The Director’s Decision

8.  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”).

9.  By Notice of Decision dated 10 April 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of him being harmed or killed by the PML(N) people if he returned to Pakistan was assessed to be low [15]; that state protection would be available to him [16] and that internal relocation was an option open to him [17].

The Board’s Decision

10.  The applicant appealed against the Director’s Decision. He was legally represented before the Board on 9 October 2018.

11.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision.  The Board found that his reason of coming to Hong Kong for asylum was not credible as he did not seek protection at the earliest opportunity before his was arrested by police. Section 37ZD of the Ordinance applies [26].  The applicant was evasive in giving answers to many of the questions [33].  The Board found that the applicant was not telling the truth.  It found “his case was both vague and unbelievable in both his oral evidence and his written case. …In particular, I do not find that he was arrested, detained or tortured by the police on a false charge or that he had jumped bail as claimed.” [41] Finally, the Board found that his risks, even if believed, were limited to local area.  Therefore, state protection would be available to him and internal relocation was an option open to him [46 & 62].

Application for leave to apply for judicial review

12.  The applicant filed Form 86 on 21 February 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, he said that he still had a strong belief that he would be harmed or killed if he returned to Pakistan.

DISCUSSION

14.  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).

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

16.  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.”

17.  His ground in support of this application does not assist his application. The fundamental basis for the Board’s Decision is that the Board rejected his evidence on the main facts in support of his claim. Therefore, the applicant simply has no factual basis to support his claim.

18.  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.

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

CONCLUSION

20.  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