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HCAL 592/2019
[2021] HKCFI 129
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 592 OF 2019
BETWEEN
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Ahmad Aqeel |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r 3)
Following:
Order by Deputy High Court Judge C P Pang:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is an application for leave to apply for judicial review against the decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”). The Director refused the applicant’s claim of non-refoulement protection. The Board dismissed the applicant’s appeal confirming the decision of the Director.
2. The applicant, born in 1989, is a national of Pakistan. On 23 March 2016, he was arrested by the police and referred to the Immigration Department for investigation. He claimed that he had sneaked into Hong Kong from mainland China by sea on 8 March 2016. He then lodged a non-refoulement claim by way of written representations on 13 April 2016 and onwards. He was subsequently released on recognizance.
3. The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [10-30] of the decision of the Board. Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by Rizwan who is a Shia Muslim and a member of Provincial Assembly (MPA) of the ruling political party. The applicant is a Sunni Muslim belonging to another political party. In about 2014, the applicant was mistaken for one of the culprits having done disrespectful act to Shia religious leader and was responsible for the death of Rizwan’s son and brother. The applicant had been threatened and attacked by people from the Shia group. Police went to his home saying that he was involved in the murder of Rizwan’s son and brother. People of the Shia group had threatened to kill him if he was found. He fled to live in other locations for a few months before he departed Pakistan for mainland China in October 2015. He lived in the mainland for 5 months before he sneaked into Hong Kong in March 2016.
The Director’s Decision
4. By a notice of decision dated 9 February 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated. Having taken into account all relevant circumstances, the Director assessed that there are no substantial grounds for believing that there will be any real risk of the applicant being harmed or killed by his enemies upon return to Pakistan. His past experience is only indicative of a small future risk of harm. The Director also found that state protection is available to the applicant and internal relocation is a viable option for him. The decision covered torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.
The Board’s Decision
5. The applicant attended a hearing before the Board on 31 October 2018.
6. By a decision dated 17 January 2019, the Board rejected the appeal/ petition confirming the Director’s decision. The Board’s decision covered all applicable grounds.
7. The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [41-67] of its decision. In a nutshell, the reasons can be summarized as follows:
(1) the evidence given by the applicant to the Director and the Board were significantly inconsistent, the Board concluded that he is not a truthful witness and he has manufactured his claims for non-refoulement [43,44];
(2) at the hearing, he claimed that he was in Hong Kong for about 5-6 months and was then arrested. His delay in lodging his application for protection indicates that he does not and did not at any time genuinely fear harm in Pakistan, he only manufactured claims following his arrest by the police [45,46];
(3) furthermore, there has been a change of government and his political party has succeeded at the national level and his locality, he can seek assistance from the party [47];
(4) in anyevent, internal relocation is a viable option for the applicant [48].
8. Having considered all the evidence/ circumstances relied on by the applicant, the Board found that the applicant would not be at real risk of any types of the proscribed harm, if refouled.
9. Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.
Application for leave to apply for judicial review
10. The applicant filed a Form 86 on 1 March 2019 for leave to apply for judicial review of the decisions of the Director and the Board.
11. An oral hearing was scheduled for the applicant on 21 October 2020. He was absent from the hearing which is treated as his waiving the right for an oral hearing. The application is therefore considered on the papers.
12. The complaints in the Form 86 and affirmation can be broadly categorised as follows:
(1) The Director and the Board were unreasonable and unfair. They failed to give him sufficient time and chance to arrange relevant evidence.
(2) The Director failed to appreciate or give proper importance to the presence of state acquiescence.
(3) The Director failed to take into proper account of the COI.
(4) The Director showed an unfair attitude.
Discussion
13. The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.
14. When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.
15. In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and found him to be an incredible witness. The Board rejected his account of primary facts based on the major inconsistencies and contradictions in his evidence. On the factual findings, there would be no factual basis in support of any of the applicable grounds. In any event, the Board found the option of internal relocation reasonable and not unduly harsh.
16. As explained above, the assessments of evidence, risk of harm, and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.
17. The grounds put forward by the applicant for his intended judicial review appear to be boilerplate grounds used by many other applicants. They are bare general assertions without specifics and unengaged with the Board’s reasoning. The Board plainly properly considered all the evidence and issues giving detailed reasons for its decision. All the grounds are without merits.
18. Indeed, the applicant delayed in lodging the claim for protection after he came to Hong Kong. Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety. I agree with the Board that it could be taken into account as damaging the applicant’s credibility.
19. Further, even if one gives the claimed account of events the most favourable interpretation, the applicant was not of a senior rank position in his political party. There was no valid reason why the opposition party would target the applicant and still wish to pursue the applicant after so many years. In any event, his enemy political party has lost power while his own party has succeeded at the national level.
20. The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.
21. Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.
22. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.
23. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.
24. For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.
Disposition
25. Accordingly, leave to apply for judicial review is refused.
Dated 21 January 2021
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(Chung Lai Fan, Christine) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 21 January 2021
Ahmad Aqeel
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors
on 21 January 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 6237/17/2/236/P1343
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1601/16 (Formerly RBCZ 11717/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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