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

HCAL 942/2019

[2022] HKCFI 1726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 942 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 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 14 November 2018 (“the Director’s Decision”), which has been dealt with by the decision dated 26 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The Director’s Decision is therefore not amenable to judicial review.[1]

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 22 August 2015 and surrendered to the Immigration Department on 22 October 2015. On 30 December 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by members of the Sunni sect in Pakistan.

5.  According to the applicant, he was born into a Sunni Muslim family. In 2014, he converted to Shia Muslim. Six weeks later, he received verbal death threats from two Sunni Muslims who were also members of National Assembly for his refusal to convert back to Sunni Muslim. One month later after the verbal threats, the applicant was assaulted by around 30 people who demanded him to convert back to Sunni Muslim. His house was later set on fire. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at 6.1 - 6.27 under paragraph 11 of the Director’s Decision and paragraphs 29 to 41 of the Board’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 was invited to attend the scheduled screening interview. However, through his duty lawyer, the applicant informed the Director that he was unwell. He answered the list of questions and thus the Director proceeded to determine his claim on the available information. By way of the Director’s Decision, the Director dismissed his claim on the basis that he would not face any real risk of harm upon refoulement. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [18]; (ii) state protection would be available to him [19] and (iii) internal relocation was a viable alternative [20].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 22 February 2019, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [5].

9.  Having considered the applicant’s evidence, the Board found that he was not a witness of truth [45]. The Board observed that the applicant was vague and unpersuasive on the evidence in relation to why he changed his religion [46]. It also noticed that the applicant demonstrated little knowledge about the difference between Shia and Sunni sects [47]. It cast doubt as to whether the applicant in fact practiced Shia faith [48]. Meanwhile, the Board found that the applicant provided inconsistent accounts [49]. As a result, the Board was not persuaded that the applicant was assaulted because of his conversion or that his house was burnt [50]-[57].

10.  On the basis of lack of credibility, the Board rejected the applicant’s claim and dismissed his appeal.

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

11.  The applicant has filed Form 86 dated 8 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant enclosed documents including the hearing bundle. In one of the documents, the applicant said the adjudicator failed to make sufficient enquiry before the determination.

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 applicant has not been able to raise valid ground to challenge the Board’s Decision. The ground in paragraph 12 above is only his bare allegation without any substance or evidence to support it.

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