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

HCAL 1136/2021

[2021] HKCFI 3025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1136 of 2021

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 15 July 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), since the applicant did not request a hearing, his application will be dealt with 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 citizen of Pakistan. On 18 August 2011, he came from Lo Wu and was denied entry. He raised torture claim under the Convention. He was detained and released on bail. He failed to answer his bail and was arrested by police. He lodged non-refoulement claim on 26 August 2013. However, he did not submit the completed Supplementary Claim Form as requested. His claim was deemed to be withdrawn under section 37 ZG of the Ordinance. He applied to the Director for re-opening his claim. The Director requested him to provide further information as to why he was unable to provide the completed Supplementary Claim Form. He failed to give satisfactory explanation to the Director. The Director refused to re-open his claim. He appealed to the Board. The Board dealt with his appeal without a hearing and dismissed his appeal.

5.  He applied to the High Court for leave to apply for judicial review of the Board’s Decision. This is the High Court Action 937 of 2018. However, his application was out of time. The Court refused to grant him extension of time because it found that there was not merit in his intended application.

6.  This is his second non-refoulement claim with the Immigration Department. This time, he has provided the Director with the completed Non-refoulement Claim Form, in which he had set out the facts he relied upon for his non-refoulement claim.

7.  Although this is his second non-refoulement claim, I consider that this application does not amount to res judicata because the merit of his case has not been considered by the Director, the Board or the Court in his first non-refoulement claim, which was deemed to be withdrawn under section 37 ZG of the Ordinance. The Court of Appeal in Re Das Purnima Rani [2019] HKCA 669 held:

“42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2) if he can fulfil the requirements in sub-ss (a) and (b) thereunder.”

8.  The second non-refoulement claim is made under s. 37ZO(2). The Director had accepted his subsequent claim application, but rejected it after due consideration.

9.  He claimed that if refouled, he would be tortured or killed. Briefly, he had grudge with a person named Tasawar, who is the cousin of his wife. His wife was engaged with Tasawar before their marriage. His wife preferred to marry him. She left her family. Tasawar threatened to kill him. He had a fight with Tasawar and three other people. His younger brother helped him by taking out a pistol and firing to the sky. He took over the pistol and accidentally shot Tasawar’s thigh. He then hid away by living in different places. He was involved in another incident where his friend took him to confront two other people. His friend hurt one of them by shooting him with a pistol at his ankles. The injured person made a complaint to the police, incriminating him as well. The injured person negotiated with the applicant that unless the applicant stood as his witness, he would not pursue against him. He was unwilling to be a witness against his friend. He fled Pakistan for China, from where he came to Hong Kong. Details of his story are set out in paragraph 8 of the Director’s Decision described below.

The Director’s Decision

10.  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”).

11.  By Notice of Decision dated 19 April 2021 (“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 if he returned to Pakistan was assessed to be low [15]; that state protection was available to him [16] and that internal relocation was an option open to him [21].

The Board’s Decision

12.  The applicant appealed against the Director’s Decision. He had appeared before the Board.

13.  By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal. The Board further found that his evidence contained contradictions and was not reliable [65 & 66]; that state protection might not be effective for him, but internal relocation would be an option open to him [82]. The Board therefore found that there was no evidence for believing that he would be subjected to torture if he returned to Pakistan [91]; that he did not have a genuine risk of BOR 2 and BOR 3 risk [95 & 100] and that his case did not fall within the scope of the Convention on Persecution risk [104].

Application for leave to apply for judicial review

14.  The applicant filed Form 86 dated 23 July 2021 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of his application, he said that it was not safe for him to go back to his country.

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, CA. §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.… …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.  He has submitted no valid ground to assist his application.

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

CONCLUSION

22.  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