SHAHZAD ARSLAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 947/2019

[2023] HKCFI 1787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 947 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 25 March 2019 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.

The applicant

3.  The applicant is a national of Pakistan. He entered Hong Kong illegally on 1 May 2015. On 27 May 2015, he surrendered to the Immigration Department. On 26 August 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Amjad Hussan due to arguments and land disputes.

4.  In brevity, the applicant had been having arguments and land disputes with Hussan since 2011. Hussan was a wealthy villager and had connections with the police. From May 2012 to January 2015, Hussan brought gangsters to attack the applicant and his father. In the January 2015 incident, while the applicant was not injured, Hussan threatened to kill him if he refused to give Hussan their land. Suffering from the distress and fear that Hussan would materialize the death threats, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 13 March 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

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

(2)  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”);

(3)  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

(4)  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”).

6.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [11]-[13]; (ii) state protection would be available to him [14]-[17]; and (iii) internal relocation was a viable option [18]-[19].

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board. On 22 October 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [8].

8.  The Board observed the applicant’s manner in giving oral evidence and found that he was not a witness of truth [65]. It noted that, from the applicant’s evidence, the subject land belonged to his father who remained in the home village without encountering any problem from Hussan. The applicant was unable to explain why he was a target of Hussan [66]. It also found that the applicant was vague and failed to provide any cogent details to the attacks [67]-[68]. The Board rejected the basis of the applicant’s claim as it was illogical and unreasonable [69].

9.  While the Board accepted that the land disputes were common in Pakistan, it found that the applicant’s evidence was insufficient to make a case [70]. On the applicant’s own evidence, he did not encounter any problems when he was living in other places [71]. Meanwhile, the country of origin information denoted that the state could provide protections to the applicant and that he could relocate to other areas [85]-[86].

10.  In the premises, 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 set out his grounds as summarized below.

(1)  Procedural unfairness: unfairly fettered its discretion; failed to provide the hearing bundle timely and the applicant did not have sufficient time to prepare for the hearing; hearing bundle in English without interpretation;

(2)  Irrationality: the Board relied upon source of news which is not officially recognized or it is outdated or hearsay.

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 grounds raised in paragraph 12, supra do not assist his application. They are general comments without evidence or specifics in support of them. There is no record from the Board’s Decision that the applicant had complained that he was unable to understand the contents of the hearing bundle or he did not have sufficient time to prepare his case. 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].”

Also, the Court of Appeal in in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”

17.  The Board, for the reasons given, found that the applicant is an incredible witness and rejected his evidence on the facts of his case. The applicant has failed to raise any valid ground to challenge the Board’s Decision.

18.  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.

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

CONCLUSION

20.  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