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

HCAL 2485/2018

[2022] HKCFI 3187

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2485 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court.

1.  Leave for the Applicant to apply for Judicial Review of the Board’s Decision be granted; and

2.  The Applicant shall issue the Originating Summons in accordance with Order 53, rule 5 within 14 days after the grant of leave.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 16 October 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 17 December 2007 and was arrested by the police on the same day. On 26 December 2007, he lodged a torture claim. His torture claim was eventually rejected on 13 January 2012 and his subsequently appeal/petition against the refusal was dismissed on 15 February 2012. On 29 April 2013, he raised a claim under Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”). His CIDTP claim was taken as a non-refoulement claim and assessed on all applicable grounds other than the ground on torture risk[1].

5.  The applicant claimed that, if refouled, he would be harmed or killed by his uncle Mohib Ullah (“MU”) due to a land dispute. The land dispute started when the applicant’s grandfather passed away in 1995. MU was rich and influential. He once planted a drug case on the applicant’s brother. The applicant’s mother sued MU. In 2007, MU threatened to frame the applicant if his mother declined to withdraw the court case. On 25 May 2007, the applicant was assaulted by 4 to 5 people who he believed to be sent by MU. Out of fear, he fled to Hong Kong for protection. Details of his claim are set out at paragraph 14 of the Notice of Decision dated 21 April 2017 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 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”);

b.  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

c.  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 screening interview for the applicant’s claim was scheduled to be on 30 August 2016. However, the applicant indicated that he did not wish to attend the interview due to his mental stress. On 25 January 2017, the duty lawyer service informed the Immigration Department that the applicant declined their services. On 28 February 2017, the applicant requested the screening interview to be scheduled after the result of his criminal case. His duty lawyer also requested questions and answer sheets be sent to the applicant due to his mental health condition. Questions and answer sheets were sent to the applicant. His duty lawyer informed the duty lawyer that the applicant declined legal service. The applicant then applied for extension of time for his interview because of his mental stress because of his criminal case. As the applicant failed to adduce any evidence to his mental illness, the Director refused to extend time and decided to proceed his claim on the available information [8]-[12].

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 applicant’s claim lacked credibility [31]; (ii) the absence or low intensity and frequency of past ill-treatments indicated no real or foreseeable risk of harm [32]-[34]; (iii) state protection would be available to him [35]; and (iv) internal relocation was a viable alternative [36].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 13 September 2018, the Board conducted an oral hearing for his appeal, during which he answered the Board’s inquiries with the assistance of an interpreter [36].

10.  Having considered the evidence, the Board made the following findings. First, the Board found that the applicant’s oral evidence was generally consistent with those in his written statements and with the country of origin information (“COI”). It accepted the applicant’s land dispute with MU, as well as the threats from him [42]. As a result, the Board accepted that the applicant might face a real risk of harm from MU under the grounds of BOR 3 risk and BOR 2 risk if he was refouled to his home village [43].

11.  Nevertheless, after considering the COI and the applicant’s comments on COI, the Board found that internal relocation to Hyderabad was a viable option to the applicant and he would not face a real risk of the prescribed harm from MU if refouled to that village [45]-[50].

12.  In these 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

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

14.  In his affirmation in support of his application, the applicant said he cannot go back to his country as he may lose his life.

DISCUSSION

15.  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).

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

17.  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.”

18.  As the Board accepted his factual evidence that he may have real risk of being harmed by Mr. MU or Mr. NU, the Board has to consider state protection and internal relocation, which are mitigating factors against the risks. The Board had not considered state protection. It had considered internal relocation. In paragraph 47 of the Board’s Decision, the Board found:

“… The Appellant may have a genuine, subjective fear he may meet people from his hometown in Hyderabad, but objectively, I consider there is only a remote chance of that happening and an even more remote change whomever he met would inform Mr/ MU and/or Mr. NU of seeing the Appellant in Hyderabad. I am not persuaded by his explanation everyone in his hometown would know of the animosity between the Appellant and Mr. MU/Mr. NU and/or their associates would know to look for the appellant, let alone find the Appellant in such a large city are further respects which increase the remoteness and speculative nature or the risk to the appellant in Hyderabad. The Appellant claims the Pakistan police are corrupt and ineffective does not detract from the remote and speculative nature of the risk.”

19.  Given the fact that Hyderabad is about 1000 km from his home town, it is possible that people from his home town may recognize the applicant and tell Mr. MU his whereabouts. The Board found this possibility remote and speculative without stating the reason for such finding other than that Hyderabad is a city with a large population. However, the Board did not reject the applicant’s evidence that he knows many people from his hometown go to other cities in Pakistan to look for work, including Hyderabad. One of those people may meet the applicant in Hyderabad and inform Mr. MU of his whereabouts. It is therefore difficult for the Board to reject this possibility as remote or speculative. The applicant had raised the issue of police corruption. It is incumbent upon the Board to make investigation, by reference to the COI, whether state protection would be available to the applicant, which the Board had failed to do.

20.  The Board’s finding of the facts is therefore Wednesbury unreasonable.

21.  The applicant has shown that he has realistic prospect of success in his proposed judicial review.

CONCLUSION

22.  I grant leave to the applicant to apply for judicial review of the Board’s Decision. The applicant shall issue the originating summons in accordance with Order 53, rule 5 within 14 days after the grant of leave.[2]

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