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

HCAL 181/2019

[2020] HKCFI 1853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 181 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 28 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant appeared before this Court.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Director of Immigration (“the Director”) as proposed respondent and by deleting the Board as interested party.

The applicant

4.  The applicant is a Pakistani national.  He came to Hong Kong illegally on 13 November 2009 and was arrested by police on 13 November 2009.  He lodged his non‑refoulement claim on 16 November 2009. 

5.  He claimed that if refouled, he would be harmed or killed by the people of the Pakistan People’s Party (“PPP”) because of his past involvement as a leader in the Pakistan Muslim League Kauf Party (“PMLQ”) in his village.

6.  He was the leader of the party and his duty was to collect votes for his party in the village.  Between 2007 and 2008, he was attacked by people of the PPP on three occasions.  On the first occasion, he was attacked by wooden sticks.  He was unconscious and found himself in the hospital.  He had bruises all over his body.  He had to stay in hospital for treatment for two weeks.  The second occasion, he was attacked on the street by the PPP people with pistol and knives.  He was stabbed on his right arm.  He was unconscious too.  He had to receive 32 stitches on his right arm.  On the third occasion, he was chased after by the PPP people.  They shot him with pistols.  He was shot 3 or 4 shots on his back and he fell unconscious too.  On each occasion, he had reported the matter to police.  But the police took no action.  He decided to flee for Hong Kong.

The Director’s Decisions

7.  The Director considered his application 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”).

8.  By Notice of Decision dated 20 October 2015, the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated.  The Director found that there was no substantial ground to believe that he would be harmed or killed if he returned to Pakistan [12]; that state protection would be available to him [21] and that relocation was an option open to him [22].

9.  By Notice of Further Decision dated 12 May 2017, the Director found that he was unable to establish BOR 2 risk.

The Board’s Decision

10.  The applicant appealed to the Board against the Director’s Decisions.  He attended a hearing before the Adjudicator on 17 January 2018.

11.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.

12.  The Board considered the applicant’s evidence and found that his evidence was not sensible to believe and it rejected his evidence [25]; that his evidence did not support his claim that he would be subjected to Torture risk if he returned to Pakistan [41]; that he failed to establish that he was subjected to any minimum level of severity within the meaning of BOR 3 risk [47]; that he failed to establish BOR 2 risk [57] and that he failed to show he would be subjected to Persecution risk [69]. 

Application for leave to apply for judicial review

13.  The applicant filed Form 86 on 18 January 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In his affirmation in support of his application, he said that the Board’s Decision was unreasonable and it failed to consider all the matters raised in his claim. 

DISCUSSION

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

16.  The applicant has not set out the evidence or any particulars in support of his complaint.  He only complained that the Board did not believe his evidence.

17.  InRe: 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.”

18.  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.

19.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

20.  I therefore refuse to grant leave to 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