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HCAL 1501/2018
[2020] HKCFI 2832
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1501 OF 2018
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Tahir Mehmood |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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1st Putative Respondent |
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Director of Immigration
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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”) refusing the Applicant’s claim of non-refoulement protection.
2. The Applicant, born in 1967, is a national of Pakistan. On 28 May 2014 he was arrested by the police for being an illegal immigrant and referred to the Immigration Department for investigation. He then lodged a non-refoulement claim. 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 [22-24] 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 his old classmate, named Butt, as he refused Butt’s invitation to convert from a Sunni Muslim to Shia Muslim. The Applicant claimed that Butt, an ardent Shia Muslim, always persuaded people in the area to convert to Shia. His family is rich and powerful in the area. The Applicant used to work in Saudi Arabia. In 2012 and 2013 when he returned to Pakistan for vacation, Butt and his men harassed and threatened to kill him if he did not convert to Shia. He moved to live in another area but still received threatening calls from Butt that he would be killed if he did not comply. In fear of his safety, he left Pakistan on 31 January 2014 for China via Bangkok. He arrived in Guangzhou and stayed there for about 3 months before he sneaked into Hong Kong by boat.
The Director’s decision
4. By notices of decision dated 10 May 2016 and 11 July 2017 respectively, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds. The first decision covered torture risk[1], BOR 3 risk[2], and persecution risk[3]. The second decision covered BOR 2 risk[4]. Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low and found state protection as well as internal relocation as a reasonable option available to the Applicant. The Applicant lodged an appeal/ petition to the Board against the Director’s decisions.
The Board’s decision
5. The Applicant attended a hearing before the Board on 3 May 2018.
6. By a decision dated 20 July 2018, the Board rejected the appeal/ petition confirming the Director’s decisions. The Board’s decision covered all applicable grounds.
7. The Board gave detailed reasons for rejecting the Applicant’s claim at para [29-56] of its decision. The essential reasons can be summarized as follows:
(1) the appellant was evasive and his account was vague and lacking in particulars, there were also inconsistencies and contradictions between what he said at the hearing and what was recorded in the documents [30];
(2) the Board did not find him to be telling the truth and found his case was vague and unbelievable in his oral evidence and his written case [37];
(3) he might have at most encountered some harassment from Butt, but the claim about the so-called threatening calls was not accepted [37];
(4) he does not appear to face real chance of harm [40];
(5) in any event, internal relocation is a viable option to him [56].
8. Having considered all the circumstances relied on by the Applicant, the Board rejected his claim on all applicable grounds.
Application for leave to apply for judicial review
9. The Applicant filed a Form 86 on 30 July 2018 for leave to apply for judicial review of the decisions of the Director and the Board.
10. In the Form 86, the Applicant did not set out any grounds for the relief sought. In the affirmation in support, he set out some general propositions of law, in particular, that he was not given legal representation at the hearing before the Board.
Discussion
11. The relevant principles in considering non-refoulement cases 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.
12. When the Applicant pursued the appeal to the Board, the Director’s decisions were superseded by the Board’s decision and are no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court needs to examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decisions of the Director. This decision will only focus on discussing the Board’s decision.
13. In the present case, the Board in fact rejected the Applicant’s appeal/ petition on the ground that it disbelieved the Applicant and rejected the account of primary facts based on the vagueness, inconsistencies and contradictions in the Applicant’s evidence. On the factual findings, there would be no factual basis in support of any of the applicable grounds. In any event, it found that internal relocation is a viable option for the Applicant.
14. 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.
15. The complaints raised by the Applicant in his affirmation are general propositions of law without particulars. The only specific complaint was about his lack of legal representation at the hearing before the Board. It is however well established that the high standards of fairness do not demand legal representation being made available all the time to a non-refoulement claimant. There is no merit in this complaint.
16. Further, even if one gives his account the most favourable interpretation, the alleged past ill-treatment was of low intensity and frequency demonstrating no real risk of future harm. It came nowhere near the level of severity required by law for protection to be extended to him. There was no valid reason why his old classmate would target him and still wish to pursue him after so many years simply because he did not want to convert to another sect of Muslim.
17. It can hardly be established that the Applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.
18. 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.
19. There cannot be any criticism of the Director’s and the Board’s determinations which are eminently reasonable.
20. 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.
Disposition
21. For the reasons given, there is no prospect of success in the Applicant’s intended application. Accordingly, I refuse to grant leave to apply for judicial review.
Dated 18 November 2020
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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 18 November 2020
Tahir Mehmood
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 18 November 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 3744/16/5/162/P976
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1957/15 (Formerly RBCZ 2032/14) and RBCZ 9002313/17
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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 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.
[3] 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.
[4] 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.
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