ZULFIQAR KHAN v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 420/2019

[2023] HKCFI 91

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 420 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 present 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 30 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), he appeared before the Court on 17 October 2022.

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 11 July 2015.  On 24 July 2015, he surrendered himself to the Immigration Department.  On 19 November 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his girlfriend’s family.

5.  In short, the applicant developed a romantic relationship with Shazia in around July 2014.  They had premarital sexual intercourse, leading to Shazia’s pregnancy.  Her family discovered their relationship after beating Shazia to confession.  As premarital sexual intercourse was prohibited in Pakistan, Shazia’s family members visited the applicant in around April 2015 and attacked him.  He sustained injuries and was hospitalized.  After he was discharged, he escaped to Rawalpindi.  However, the applicant’s friend spotted Shazia’s family.  Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 25 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.  By way of the Director’s Decision, the Director dismissed the applicant’s claim as his claimed fear of harm was groundless.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) the claimed fear of harm from Shazia’s family was not imminent and substantial as asserted [13]; (iii) his behaviors were inconsistent with someone who feared a risk of harm [14]; (iv) state protection would be available to him [15]-[18]; and (v) internal relocation was a viable alternative [19].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 16 August 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [7].  The applicant chose not to give oral evidence.  The Board opined that there was no reason to doubt his credibility [30].  Having stated that, the Board proceeded to consider his version of events.  The Board noted that the past ill-treatments were of low intensity [31]; that they were not as imminent as claimed by the applicant in light of the fact that his girlfriend’s family had the opportunities to kill him but did not do so [32]; and that the country of origin information showed that state protection would be available for him [34]-[36]; and that internal relocation was also a viable option [37].

9.  For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

10.  The applicant has filed Form 86 dated 14 February 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, the applicant had raised the grounds below.

(1)  There was no translation provided to him at the Duty Lawyer Service, no assistance in completing the Notice of Appeal, no assistance when picking up the Hearing Bundle and no help in understanding the content of the Board’s Decision and his capability of English language is limited.

(2)  He is not sure if the Board had in fact provided adequate reasons as he does not understand the Board’s Decision.

(3)  He is also uncertain if the Board had considered all relevant materials in making the conclusion. The adjudicator has not made his own finding on the new COI.

(4)  Although he has been from Pakistan for several years, this does not mean that the issue is solved and his life is still in danger in Pakistan.

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, §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.  Before me, the applicant said he was not sure if the Board was wrong in its Decision and he wanted the Court to look at it again.

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.  As to his grounds set out in paragraph 11, supra, ground (1) does not sustain as the Court of Appeal 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.”

16.  Ground (2) is a non-starter as it is his own uncertainty, which does not constituent a reason to challenge the Board’s Decision. The same situation applies to ground (3). Ground (4) is not a valid reason to challenge the Board’s Decision.

17.  There is no valid reason from the applicant 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