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HCAL 1181/2019
[2023] HKCFI 3024
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1181 of 2019
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BETWEEN
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Qayyum Muhammad |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 16 April 2019 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 26 August 2010 and was arrested by the police on the same date. On 15 August 2013, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the secret agencies in Pakistan. Since the applicant’s previous torture claim was rejected on 12 October 2011, his non-refoulement claim was assessed on all applicable grounds other than that on torture risk[1].
5. According to the applicant, he had been a member of Jamu Kashmir Liberation Front (“JKLF”) since 2000. He claimed that his duties included recruiting the boys to be trained by the JKLF as freedom fighters for the liberation of Kashmir. One day in January 2005, the applicant was kidnapped by some unknown men who he believed to be from the government. They detained him in a big room and interrogated him about the relationship between JKLF and other organizations. The applicant was also tortured in the room. He lost consciousness and regained after two days. He lost his teeth at both upper and lower jaws. His lower jaw was also fractured and face seriously injured.
6. Yet, the hospital refused to admit the applicant. It was only after constant demands from his family that the doctor from private clinic agreed to treat him. He had undergone operations in the mouth. Afterwards, the applicant was able to stay in his home safe without any disturbance from the government agents.
7. In 2006, after the applicant was fully recovered, he participated in the JKLF activities and started promoting the party again. He claimed that, since he rejoined the party, he had been tortured mentally three times by the government agents. In these incidents, he was told by the agents that he should leave JKLF. They also threatened to kill him if he did not comply with the request.
8. Instead of reporting to the police, which the applicant deemed not helpful, he reported the incidents to his local party leader Farooq Raja. Raja told him that the kidnaps were frequent, not just targeting the applicant but the JKLF workers and leaders. Raja only advised him to hide.
9. From 2007 to 2009, the applicant was not taken by the agents again. However, he was approached by some unknown people. They did not cause any harms to the applicant but tried to persuade him to quit the JKLF. The applicant believed that they were sent by different agencies of the government.
10. In 2009, the applicant left Pakistan for the first time. He returned without seeking any protection in Mainland China. Since he learnt that the government still targeted the JKLF members, he left for Hong Kong and sought protection. In 2015, he learnt from his wife that his brother was kidnapped because of him. Details of his claim are set out at paragraph 8 of the Notice of Decision dated 22 June 2018 by the Director (the “Director’s Decision”).
The Director’s Decision
11. 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”).
12. By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the past events indicated that the level of risk of harm from the government agencies upon his refoulement was low [12]-[15]; (ii) state protection would be available to him [16]-[17]; and (iii) internal relocation was a viable option [18]-[19].
The Board’s Decision
13. The applicant appealed the Director’s Decision to the Board. On 18 October 2018, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of the interpreter [8].
14. The Board recapped the applicant’s claim [17]-[26]. Having considered the evidence, the Board made the following findings. At the outset, it found that the applicant’s oral testimonies and his evidence in the written statements were generally consistent [27]. It then noted that the applicant was only injured in the first incident, in which there was no evidence to prove the identities of the attackers [28]. Meanwhile, there was no evidence that the government agents had the intentions to seriously harm or kill him, despite they had the opportunities to do so. Further, there was no evidence that the government would target an ordinary member like the applicant and he had ceased working for the JKLF [29]-[31]. Thus, the Board found that there was no genuine and substantial risk if the applicant was refouled [32].
15. In any event, the Board concluded that state protection and internal relocation were both viable options for the applicant [33]-[38].
16. 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
17. The applicant has filed Form 86 dated 3 May 2019 for leave to apply for judicial review of the Board’s Decision.
18. In his affirmation in support of his application, the applicant did not raise any specific ground.
DISCUSSION
19. 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).
20. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
21. 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.”
22. The applicant has not been able to raise any valid reason to challenge the Board’s Decision.
23. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
CONCLUSION
24. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 7th day of December 2023
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(M.O. WONG)(Ms)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 7/12/2023
Qayyum Muhammad
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 7/12/2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12327/18/7/77/P2386
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1784/18 (formerly RBCZ 2000007/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115
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