ULLAH SIBGATH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1094/2019

[2022] HKCFI 1365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1094 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.  The applicant applies for leave to apply for judicial review of the Decision dated 12 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court fixed a hearing for him. However, he was absent on the date of hearing without any prior notice to the Court. His application is therefore 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 national of Pakistan. He entered Hong Kong illegally and was arrested by police on 16 December 2015. He was referred to the Immigration Department. By way of written representation dated 21 December 2015, he lodged non-refoulement claim on the ground that if refouled, he would be harmed or killed by Mr. Mukhtar (“Mukhtar”) who was associated with Pakistan Muslim League Nawaz (“PML(N)”) because he had a land dispute with him and also, he was associated with Pakistan Tahreek-e-Insaf (“PTI”).

5.  According to the applicant, he was a supporter of PIT. He helped organize the events and attended party rallies and meetings. Mukhtar was an elected member of PML(N). He did not like the applicant. In 2013, there was an election campaign. Mukhtar and his followers came and beat him very badly. They hit him with wooden sticks, causing head and back injury. He was admitted to hospital. The matter was reported to police, who took no action. One day before the election, he was threatened again by some PML(N) people that if he appeared on the election day, they would kill him. He left the place for Rawlpindi City and also to Gilgat, where he was safe without any incident. Advised by his friends, he left Paskistan for Hong Kong on 3 December 2015.  Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

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.  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”).

7.  By a Notice of Decision dated 10 May 2018 (“the Director’s Decision”), the Director refused the applicant’s claim. The Director found that the level of risk from the PML(N) members upon his refoulement was assessed to be low because (i) the alleged injuries did not attain a minimum level of severity; (ii) his life was not in real danger and the PML(N) people were not as influential or powerful as he alleged such that they could locate him as he was safe in Rawlpindi city and Gilgat [11.1-11.3]; (iii) state protection was available to him [13-16] and (iv) internal relocation was an option open to him [17].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 11 February 2019, the Board conducted an oral hearing for his appeal.

9.  Having considered the applicant’s evidence, the Board rejected his evidence that he was assaulted by the PML(N) people; that he did not obtain police assistance; that the PML(N) people were still interested in him. It further found that the purported land dispute did not have anything to do with his alleged fear; that the land dispute with Mukhtar was a personal dispute without any state involvement and that state protection was available to him. See paragraphs 36-66. Relocation was also an option open to him [71].   

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

10.  The applicant has filed Form 86 dated 24 April 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application and his statement attached to Form 86, he said the Board’s Decision was unreasonable and the Director had failed to consider all the matters raised in his claim. The Director’s and the Board’s Decisions had failed to take into account many things and issues. Also, the immigration officer did not know the real situation and condition of Pakistani culture as he had not been to his country.

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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.  The Court will bear in mind that the Board’s Decisions 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.  Those grounds above are not valid reasons to challenge the Board’s Decision as they are either his comments or opinions without any evidence in support or they are simply untenable. The immigration officer can simply rely upon the country of origin information without going to his country in order to understand his situation in his country.

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

CONCLUSION

18.  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