IBRAR SHAQAIB v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1660/2019

[2024] HKCFI 1492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1660 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
	consideration of documents and Applicant being present in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 13 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did asked for a hearing. He appeared before the Court on 22 April 2024.

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

The applicant

4.  The applicant, aged 36, is a Pakistani. He entered Hong Kong illegally on 7 February 2016 and was arrested by the police on 8 February 2016. The applicant lodged a non-refoulement claim on 26 February 2016. The claim was made on the basis that, if refouled, he would be harmed or even killed by members and supporters of the Pakistan People’s Party (“PPP”) because he was a supporter of the Pakistan Muslim League (“PML(N)”).

5.  According to the applicant, he was previously a PPP member, but he changed his support to PML(N) in about 2013. During the election in May 2013, while people were queuing at the polling station to cast votes, PPP members attacked PML(N) supporters and there were even gun shots fired. Although the applicant was not injured, his maternal uncle was shot and killed. The applicant believed that he and his uncle were targeted specifically by PPP because they had changed party.

6.  The applicant ran for his life immediately and relocated among three cities within Pakistan, staying for about six months in each of them, so as to avoid being killed by PPP. Thereafter, the applicant still did not feel safe as he learnt from his friend that PPP went to look for him in these three cities. He thus decided to leave Pakistan. Eventually he sneaked into Hong Kong from Shenzhen on 7 February 2016.

7.  The applicant gave contradicting evidence as to whether he had reported the shooting incident to the police. He claimed in the non-refoulement claim form that he had not sought protection from the police because they were under control of powerful politicians. In the screening interview, he claimed that he reported the case to the police, but they did not entertain him because they sided with PPP. Meanwhile, the applicant also considered internal relocation within Pakistan not viable.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 10 August 2018 (“the Director’s Decision”).

The Director’s Decision

9.  The Director considered the applicant’s claim in relation to the following risks:

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

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

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the absence of past ill-treatment from PPP members indicated that they did not have any real intention to seriously harm or kill the applicant [11]; (ii) state protection would be available to him upon his return [12]-[16]; (iii) internal relocation would be viable [17]-[19] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [20]-[26], Persecution risk [27]-[32] or Torture risk [33]-[35].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 11 March 2019, the Board conducted an oral hearing.

12.  Having considered the applicant’s evidence, the Board was of the view that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [12]-[24], [38]-[39]. Furthermore, internal relocation was also available to the applicant taking into account the country of origin information [40]-[44].

13.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

14.  The applicant has filed Form 86 dated 17 June 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In the affirmation in support of his application, the applicant said that he disagrees with the Board and he has big problem in his country.

DISCUSSION

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

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, he said that he was not satisfied with the Board’s Decision.

18.  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.”

19.  For the reasons set out in the paragraphs mentioned in paragraph 12, supra, the Board found that there are no substantiated grounds for believing that the applicant will face a genuine and substantial risk of being subjected to harm or death if he returns to Pakistan. Also, the Board found that internal relocation is an viable option to him. Although the applicant said otherwise in his NCF, there is no valid reason from the applicant to challenge the Board’s finding.

20.  There is no reason that the Court should interfere with the Board’s Decision.

21.  The applicant fails to show that he as any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

22.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. 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