SIDDIQUE TOUSEEF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2489/2018

[2022] HKCFI 3140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2489 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.  The applicant applies for leave to apply for judicial review of the Decision dated 1 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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 national of Pakistan.  He entered Hong Kong illegally on 14 February 2016 and was arrested by the police on the same day. On 18 February 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his father’s business partner.

5.  In brevity, the applicant claimed that, together with the business partner, his father established a sanitary products business in mid-2014. However, the business partner was not satisfied with the profit-sharing arrangement.  Yet, his father refused to renegotiate.  As a result, the business partner threatened to kill the applicant who was the only son in the family.  In light of the threat, the applicant’s father decided to close down the business, which further irritated the business partner.  Feared that the business partner would materialize the threat, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 10 of the Notice of Decision dated 13 April 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  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”).

7.  The applicant’s screening interview was scheduled to be on 9 April 2018.  However, the applicant failed to attend the interview and also failed to produce any medical certificate to explain the absence.  As a result, the Director proceeded to determine his claim on the available information [5]-[8].  By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the absence of past ill-treatments indicated no real or foreseeable risk of harm [16]-[19]; (ii) state protection would be available to him [20]-[21]; and (iii) internal relocation was a viable alternative [22]-[23].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 24 October 2018, the Board conducted an oral hearing for his appeal, during which he answered the Board’s inquiries [4].

9.  Having considered the evidence, the Board made the following findings. First, the Board found that the dispute was a private one without any kind of state involvement [7]-[9].  Secondly, he was never inflicted with physical or mental pain and sufferings that attained a minimum level of severity [10]-[13].  Thirdly, country of origin information showed that internal relocation was a viable option [14]-[19].  As a result, the Board rejected the applicant’s claim. Independently assessed, the applicant’s claim lacked credibility [31]-[33].

10.  For these reasons, the Board dismissed the applicant’s claim.

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

11.  The applicant has filed Form 86 dated 6 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant said the Board’s Decision is unfair and unreasonable.

DISCUSSION

13.  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 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).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  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.”

16.  The ground in paragraph 12 is only general assertion, which will not assist his application. The Court of Appeal in in Salim Ahmed alias Md Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].

17.  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.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.  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