IQBAL ZAFAR v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2564/2018

[2022] HKCFI 541

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2564 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 Decisions dated 19 September 2017 of the Director of Immigration (the “Director’s Decision”) and the Decision dated 15 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The Court of Appeal in Re: Aioub Ali [2019] HKCA 1329 held that in the absence of exceptional circumstances, it is inappropriate to mount a judicial review against the decision of the Director after a decision of the Board has been given [15]. There being no exceptional circumstances, the applicant’s application for leave to apply for judicial review of the Director’s Decision is dismissed.

3.  The applicant did not request a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application is dealt with on paper.

4.  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

5.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 7 July 2012 and was arrested by the police on the same date.  He raised a torture claim which was rejected and the petition of the refusal was dismissed on 30 November 2012.  On 10 March 2014, he lodged a non-refoulement claim.  The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by Zaman and his associates because of the political dispute. 

6.  According to the applicant, his family belonged to a caste called Mughal which supported the Pakistan People’s Party (“PPP”).  In 1992, there was a serious fight between Mughal and another caste called Awan.  Awan group killed two of the applicant’s family members.  However, the PPP supported Awan and thus the applicant’s family left PPP and joined Pakistan Muslim League – N (“PMLN”).  Zaman was a member of PPP who the applicant’s family used to support.  From 1994 to 2007, Zaman not only attempted to file false case against the applicant’s family but also talked behind their back for betraying the PPP.  In 2003 to 2008, the applicant worked in Pakistan Atomic Energy, a government organization, with the access to information related to atomic energy materials.  In 2012, Zaman asked for the relevant information but the applicant refused.  In May 2012, the applicant successfully avoided a gun accident but Zaman threatened that he was the next target.  Out of fear, he left Pakistan.  He heard from his friend that Zaman was still looking for him and that his brothers were attacked.  Thus, he had since stayed in Hong Kong for protection.     Details of his claim are set out in paragraph 9 of the Director’s Decision and paragraphs 18-19 of the Board’s Decision described below.

The Director’s Decision

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

a.      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”);

b.      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

c.      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”).

8.  By the Director’s Decision, the Director refused his claim for the reason that the level of risk of harm from Zaman and Zaman’s associates upon his return was assessed to be low.  The Director found that (i) the low intensity of the past ill-treatment from Zaman was indicative of a small future risk of harm [14]-[15]; (ii) state protection would be available to him [16]-[19], and (iii) internal relocation was an option open to him [20]-[25].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board.  He attended the scheduled hearing on 19 July 2018, during which he gave oral evidence and was cross-examined with the assistance of an interpreter [10].

10.  The Board noticed that the applicant’s claim was effectively the same as those advanced in his torture claim in 2012, with the additional information that his brothers were attacked.  However, the applicant did not produce evidence to support this additional fact [9].  Apart from the evidence filed in the applicant’s non-refoulement claim, the Board also considered the decisions from the Director and the Board for the applicant’s previous torture claim [12]. 

11.  During the hearing, the Board probed into the material aspects of the applicant’s claim, such as his service with the Pakistani army and the murder of his cousin in 1992.  The Board also discussed with the applicant his political affiliations and his source of fear.  Further, the Board clarified with the applicant his claim in relation to Zaman’s request for information about atomic energy and the attacks of his two brothers [21]-[51].  Viewing the evidence in totality, the Board refused to accept that the applicant and his family were involved in any political parties; that he had any involvement in the fight which led to the death of his cousin in 1992; that he was named in a police report as relating to the incident; that he was a target of Awan group because of his affiliation with Mughal; that he was approached by Zaman for sensitive information and that he was ever a target of harm or threats from Zaman [52].  On the basis of lack of credibility, the Board rejected the applicant’s claim and dismissed his appeal.  

Application for leave to apply for judicial review

12.  The applicant filed Form 86 on 14 November 2018 for leave to apply for judicial review of the Director’s Decision and the Board’s Decision.

13.  In his affirmation in support of his application, he said “The Director of Immigration failed to consider and give sufficient weight to all evidence and rule otherwise. The Adjudicator also was indifferent and agreed towards the Director’s Decision despite all errors in Director’s decision.”

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 applicants’ 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.  The applicant does not have any valid ground to challenge the Board’s Decision. The grounds in support of his application are his opinions or comments without any evidence in support. The Board simply did not believe his evidence on the facts of his case. In other words, he has no factual basis in support of 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 prospect of success in his intended judicial review.

CONCLUSION

20.  I therefore refuse to grant leave to 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