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

HCAL 236/2019

[2022] HKCFI 1448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 236 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.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 21 January 2019 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 shall 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 24 August 2015 and surrendered to the Immigration Department two days later. On 4 May 2016, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Iqbal due to a land dispute.

5.  According to the applicant, Iqbal was his uncle’s son and lived in the hut near that of the applicant. In 2014, Iqbal informed the applicant that the applicant should give him the other side of the hut as Iqbal paid the medical expenses for the applicant’s brother. The applicant refused. Thereafter, the applicant claimed that he was attacked four times by masked men. He could not recognize the attackers but suspected that they were sent by Iqbal as they demanded him to leave the hut during the attacks. Out of fear, he eventually fled to Hong Kong for protection. Details of his claim were set out at paragraph 7 of the Director’s Decision and paragraphs 9 to 23 of the Board’s Decision as described below.

The Director’s Decision

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

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

(2)  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”);

(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”).

7.  By a Notice of Decision dated 9 January 2018 (“the Director’s Decision”), the Director refused the applicant’s claim. The Director found that the risk of harm from Iqbal was assessed to be low because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[14]; (ii) the subject dispute was private in nature [15]; (iii) state protection was available to him [16]-[23]; and (iv) internal relocation was an option open to him [24]-[29].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. The Board scheduled an oral hearing on 11 December 2018 for his appeal, during which the applicant gave evidence with the assistance of an interpreter [25].

9.  The Board enquired the material aspects of the applicant’s claim [26]-[34]. Before the Board, the applicant stated that his incapacity to relocate to other cities in home country was due to financial reasons [34]. The Board observed that the applicant’s evidence was inconsistent. For example, he gave contradictory accounts in relation to whether he owned the property and to the circumstances surrounding the dispute with Iqbal [37]-[39]. It also rejected the applicant’s evidence on pledging his property to his friend Shah for the repayment of a loan [40]. It found that the applicant’s claimed fear was vague and unpersuasive [41]. Further, the Board found the applicant’s claim that Iqbal was angry with his mortgage of the property to Shah lacked credibility [43]. It noted that, on the applicant’s own evidence, he left Pakistan because Iqbal did not wish to live under the same roof with him. Nevertheless, the Board opined that there was no indication that Shah or Iqbal would take steps to pursue and harm the applicant and, in any event, the applicant was capable of relocating to other areas [44]-[46]. 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 25 January 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he set out his grounds below:

“… I think my officer [the immigration officer] decided his decision before he read my story. If he pay good attention, he cannot cancel my claim. My enemy is very influential and very powerful. Any time any place in Pakistan he can kill me. But my officer have no idea about my enemy because he never visit Pakistan. In my screening interview, my officer as me some question which are not related [to] my claim. So I could not …to my main problem. My interpreter’s behaviour is not good. He not translate all my speaking because I talk 10 minutes but he translates 2 minutes. In my appeal hearing, my adjudicator asked me some unnecessary questions. Those questions have no relation to my claim. Before my hearing, immigration gave me a big bundle. I cannot read or write English. My friend had no time to help me. And they gave me only 10 days to read the bundle. So without understanding anything, I went to the hearing.”

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.  The grounds raised by the applicant, in my view, do not assist his application. It is only his opinion that the immigration officer did not read his story before he made his decision. The immigration officer does not have to visit his country because he can make reference to the country of origin information complied by other countries about Pakistan. Whether the questions put to him are relevant is for the immigration officer to decide, not the applicant. In any event, at the screening stage, the application was legally represented. If he was not satisfied with the procedures, he should instruct his lawyer to make representation or objection to the immigration officer. On the record, there was no such objection before the immigration officer at the screening stage. His complaint about the interpreter at the screening interview was not recorded in the Director’s Decision. His complaint against the adjudicator for asking irrelevant question is only his opinion. There was no application before the Board that he was not given sufficient time to prepare his case for the hearing. He said that he does not understand English. However, he had prepared his grounds in English. He did not say that the grounds were prepared by his friend.

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 apply for 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