MAHMOOD ZAFAR v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2169/2018

[2022] HKCFI 491

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2169 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.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 10 September 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I now 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 25 May 2014 and was arrested on 14 January 2015.  He lodged a non-refoulement claim on 16 January 2015.  The applicant’s claim was made on the bases that (1) he would be harmed or killed by his relatives due to a land dispute; and (2) his relatives, who belonged to Pakistan People’s Party (“PPP”), would harm him due to his membership in Muslim Conference Party (“MCP”). 

5.  According to the applicant, he inherited some lands from his father in 2009.  In the end of 2011, his relatives wanted to claim ownership over the most valuable land in the estate.  When the applicant sought to construct on that land, his relatives, together with their sons, came to the land and threatened to kill the applicant if he did anything on the land.  Thereafter, the relatives occupied the land by force and piled building materials onto it. The applicant’s report to party leader and the police was of no avail.  His complaint to the court was still ongoing at that time.  The next night, the relatives visited the applicant’s house, firing gunshots at his door to threaten him.  Despite his relocation to other village, he still received phone calls of threats from them.  Out of fear, he fled to Hong Kong for protection. Details of his story are set out in paragraph 8 of the Director’s Decision described below and paragraph 9 of the Board’s Decision.

The Director’s Decision

6.  The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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.  By Notice of Decision dated 29 September 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of him being harmed or killed upon refoulement was assessed to be low [13]-[18]; that state protection would be available to him [19]-[24] and that internal relocation was an option open to him [25].

The Board’s Decision

8.  He appealed the Director’s Decision to the Board.  On 25 July 2018, the Board held an oral hearing for the applicant’s appeal, during which he answered inquiries from the Board with the assistance of the interpreter.  At the hearing, the applicant confirmed that he did not fear any harm for religious reasons [46].  

9.  While the Board accepted the applicant’s evidence with regards to his inheritance of the land, it casted doubt on the threats from the relatives. The Board found that the applicant provided different versions on the forms of the attack and inconsistent accounts as to the time when the police got involved [30]-[31].  It also doubted the applicant’s construction on the land [32].  Further, it disbelieved the applicant’s claim that his relatives tried to occupy the land which increased in value after a road was constructed.  The evidence showed that the road was constructed some 11 years ago, long before the applicant’s claim [33].  The Board also found that the applicant provided inconsistent account as to the circumstances surrounding the shooting incident [34].  Moreover, the documents provided by the applicant failed to support his claim [36]-[43].  Viewed in totality of his evidence, the Board found them to be inconsistent and implausible.  For these reasons, the Board rejected the applicant’s claim on all applicable grounds and dismissed his appeal. 

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 9 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he said that he was not satisfied with the decision because he had submitted the documents, but they were disregarded.  He had big threat in his country.  His life will be in danger if he returns.

DISCUSSION

12.  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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

14.  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.”

15.  He does not have any valid ground to challenge the Board’s Decision.

16.  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.

17.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  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