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

HCAL 1203/2018

[2021] HKCFI 476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1203 OF 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant 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 15 June 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”), 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.

The applicant

4.  The applicant is a citizen of Pakistan. He came to Hong Kong on 12 February 2015 as a student as was granted limited stay as a student.  His education institute withdrew sponsorship on him on 19 March 2015.  However, he overstayed and was arrested by police on 15 October 2015.  He was referred to the Immigration Department where he lodged his non-refoulement claim.

5.  He claimed that if refouled, he would be harmed or killed by Shia Muslims. He and his family are Sunni Muslims.  Since 2013, some Shia enemies came to the mosque where he and his brother attended to cause trouble to them.  In around January 2015, they came to attack him and his brother. He was not injured. His brother suffered a broken arm.  He did not report to police because he thought that it would not be useful to do so since the Shia were wealthy and influential. He obtained a student visa for Hong Kong on 12 February 2015.  The details are contained in paragraph 6 of the Director’s Decision.

The Director’s Decision

6.  The Director considered their applications 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 Notice of Decision dated 19 June 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that there were no substantial grounds for believing that there would be any substantial risk of being harmed or killed by his enemies if he returned to his country [11]; that state protection would be available to him [16] and internal relocation was an option open to him [18].

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision. He attended the hearing before the Board.

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.

(1)   The applicant had given inconsistent evidence to the Board. [45]

(2)   The Board did not believe his evidence. [47]

(3)   State protection would be available to him, but he never sought such protection. [49 & 50]

(4)   The applicant may live in Lahore, Rawalpindi or Islamabad for relocation. [51]

(5)   The country of origin information does not disclose systematic targeting of harm of Sunni Muslims by Shia Muslims within Pakistan. [53]

(6)   The Board regarded the risk of harm to the applicant, if he returned to Pakistan, that would amount to protected risks to be far-fetched and fanciful. [54]

(7)   For the reasons above, the Board rejected his claim on the Torture risk, BOR 2 risk, BOR 3 risk and Persecution risk.

Application for leave to apply for judicial review

10.  The applicants filed Form 86 on 27 June 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In the affirmations in support of his application, he said:

“The decision of the director of immigration was unreasonable in that he failed to consider all the matters raised in my claim/or give adequate reason for his decision.”

DISCUSSION

12.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 9 above.

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

“13.… …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.”

14.  His ground in support of this application refers to the Director, whose decisions have been considered by the Board. I shall therefore take it to be the Board’s Decision. His reason is only his opinion without any evidence or specific in support of it. Quite the contrary, the Board has given reasons in support of its findings. See paragraphs 25 to 54 of the Board’s Decision.

15.  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.

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

CONCLUSION

17.  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