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

HCAL 853/2019

[2023] HKCFI 1328

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 853 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 18 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall 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 5 March 2016 and surrendered himself to the Immigration Department on 9 March 2016.  On 12 October 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Masood and Rafaqat, who belonged to the Pakistan Muslim League (N) (“PML(N)”) because he participated in the activities of Pakistan Tehreek-e-Insaf (“PTI”).

5.  In brevity, the applicant was an active participant in the PTI.  He often solicited votes for the PTI and offered his residence for the PTI gatherings.  In his home village, there were constant conflicts and clashes between the members of PTI and PML(N).  The applicant believed that he was a target as he was verbally threatened by Masood and Rafaqat in November or December 2015 and was once attacked by the PML(N) members in the end of December 2015.  Out of fear, he was advised by the local PTI chairman to leave his home village.  As a result, he fled to other cities in Pakistan before eventually coming to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 12 June 2018 by the Director (the “Director’s Decision”).

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.  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 Decision, the Director dismissed the applicant’s claim as the claimed fear of harm upon refoulement was groundless. In elaboration, the Director found that (i) the low intensity of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[17]; (ii) state protection would be available to him [18]-[25]; and (iii) internal relocation was a viable option [26]-[29].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 18 January 2019, the Board conducted an oral hearing for his appeal, during which he testified.

9.  The Board noticed that the applicant was evasive in giving evidence [45].  For example, he was unable to explain why he stated that the PML(N) was corrupt nor did he clarify why he claimed that the police would not assist him [46]-[49].  It found that the lack of actions from his alleged enemies indicated that they did not possess any intention to cause harm or kill the applicant [50].  It noted that the applicant gave contradictory evidence about the claimed attack [51]-[52].  The Board further rejected that the applicant was a target of the PML(N) as he was a mere supporter [53]-[54].  While he was away from his locality, he had stopped promoting the PTI and was never found by his alleged enemies [55].  In any event, state protection and internal relocation were both available to the applicant [57]-[72].

10.  For the above reasons, the Board rejected his claim and dismissed his appeal.

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

11.  The applicant has filed Form 86 dated 27 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant said the Board’s Decision is unfair and unreasonable as his life is in danger and he will get killed if he goes back to his country.

DISCUSSION

13.  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).

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

15.  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.”

16.  The Board had assessed his case and did not accept his evidence on the facts of his case. The grounds in paragraph 12 are only his opinions without any evidence in support. He has given no valid reason to challenge the Board’s Decision.

17.  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.

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

CONCLUSION

19.  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