MOHAMMAD AMJAD v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2506/2018

[2022] HKCFI 3311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2506 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.  The applicant applies for leave to apply for judicial review of the Decision dated 26 October 2018, which is 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 Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 20 November 2007 and was arrested by the police on 7 January 2008 for being an illegal immigrant.  On 19 January 2008, he raised a torture claim, which was later taken as a non-refoulement claim and assessed on all applicable grounds.  His claim was made on the basis that, if refouled, he would be harmed or killed by the brothers of Abdul Wadood and be ill-treated by the police for they suspected that he had killed Abdul.

5.  According to the applicant, one night in around October 2007, Abdul borrowed his motorbike.  Abdul had three brothers who were connected with the political parties.  The applicant lent his motorbike to Abdul.  However, Abdul did not return that night.  The next morning, he was told that Abdul was killed.  He went to Abdul’s house but was attacked by Abdul’s brothers with wooden sticks.  The applicant escaped to another village where he learnt that Abdul’s brothers filed a case against him for murdering Abdul.  Out of fear, the applicant fled to Hong Kong for protection.  While he was in Hong Kong, he claimed that he was framed by a group of gangsters for criminal offences. Details of his claim are set out at paragraph 20 of the Notice of Decision dated 19 February 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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 First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk. In elaboration, the Director found that (i) the applicant failed to establish that Abdul’s brothers were as influential as claimed [30]; (ii) his alleged injuries failed to attain a minimum level of severity [31]; (iii) the claimed attacks from Abdul’s brothers after the applicant escaped to Hong Kong were based on hearsay evidence [32]; (iv) there was no concrete evidence showing the connection between Abdul’s brothers and the attackers in Hong Kong [33]; (v) state protection would be available to him [34]-[37]; and (vi) internal relocation was a viable alternative [38]-[41].

8.  For reasons set out in the Notice of Further Decision dated 30 March 2017, the Director also concluded that the applicant’s right to life would not be violated and thus rejected his claim on BOR 2 risk (the “Director’s Second Decision”).

9.  For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as the “Director’s Decisions”.

The Board’s Decision

10.  The applicant appealed the Director’s Decisions to the Board.  On 13 September 2018, the Board conducted an oral hearing for his appeal.

11.  Having considered the applicant’s evidence, the Board rejected his accounts as untruthful for the following reasons.  First of all, the Board noted that the applicant’s immigration history undermined his credibility [24]-[29].  Secondly, the applicant failed to adduce any evidence on Abdul’s death [30].  Thirdly, the applicant gave inconsistent accounts as to the assaults by Abdul’s brothers [31]-[32].  Fourthly, the applicant did not provide any objective evidence of the alleged criminal charges against him [33].  Fifthly, the applicant also failed to provide any evidence on the political affiliations of Abdul’s brothers [34].  Sixthly, the Board also rejected the applicant’s assertions that he was attacked in Hong Kong by people who were sent by Abdul’s brothers [35].  As a result, the Board found that the applicant’s claim was not substantiated [37].

12.  In addition, the Board found that state protection was available to the applicant [54]-[63] and internal relocation to cities like Karachi or Lahore would be viable options for the applicant [85]-[90].

13.  Therefore, the Board rejected the applicant’s claim and dismissed his appeal.

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

14.  The applicant has filed Form 86 dated 8 November 2018 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of his application, the applicant has set out a jumble of grounds of over 50 pages, many of which are not relevant to his case. However, I shall summarize the relevant grounds below.

(1)  Error in law: apply inappropriate standard of proof; no reasonable basis to reject his credibility; failing to consider the extended form of state acquiescence and state protection in Pakistan.

(2)  Procedurally unfair: failure to consider the country of origin information (“COI”) in relation to his case; failing to call for psychiatric report for evaluation.

(3)  Irregularity: there was a different decision-maker other than the immigration officer.

(4)  Irrationality: selectively placing weight on irrelevant information and failing to consider the consistent system of human right violations.

DISCUSSION

16.  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).

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

18.  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.”

19.  The grounds set out in paragraph 15 above are mostly the applicant’s bare assertions or opinions without evidence in support. The applicant did not raise the issue that the state was involved in the incidents. The Board had no duty to put this issue on board. The Board did not call for psychiatric report for evaluation because this issue was never raised before the Board by the applicant. The Board acts as an appeal tribunal from the decisions of the immigration officer or the Director. The adjudicator has to be a different person. There is nothing amiss about this arrangement. All the grounds are not valid to challenge the Board’s Decision.

20.  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.

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

CONCLUSION

22.  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