AHMAD TAUSEEF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2339/2018

[2022] HKCFI 1120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. HCAL 2339 of 2018

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 20 September 2018 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 30 April 2013 and was arrested by police on the same day. He was referred to the Immigration Department. On 10 March 2014, by written representation, he lodged non-refoulement claim.  He claimed that, if refouled, he would be harmed or killed by his uncle and four of his friends.

5.  According to the applicant, he and his siblings had inherited some pieces of land from their father.  His uncle wanted to obtain their land at a low price. They refused. His uncle had sent four of his friends to the applicant’s home to pressure him to sell his land. There were two occasions where he was attacked by those people.  The first occasion was in September 2012. He was attacked with fists and he fell unconscious. He reported the matter to police. But the police told him to leave without making any investigation.  This was because he uncle was well-connected with the politicians. The second occasion took place in November 2012 when he was assaulted by the same people with wooden sticks.  He sustained fractured right forearm. He had to be medically treated in hospital.  He did not report to police.  He had lived in his friends’ places in Rawalpindi and nothing happened.  Upon his friend’s advice, he left Pakistan for China. He then came to Hong Kong. He was told that his uncle had occupied his land.  But he was still looking for the applicant.  Details of his story are set out in paragraph 8 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 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”).

7.  By a Notice of Decision dated 25 July 2017 (“the Director’s Decision”), the Director refused the applicant’s claim. The Director found that the level of risk from his uncle and his people was assessed to be low because (i) low level of ill-treatment from his uncle and the four people in the past was indicative of unlikelihood of future risk of harm upon his return [15]; (ii) state protection would be available to him [16-20] and (iii) internal relocation was an option open to him [21-23].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 30 May 2018, the Board conducted an oral hearing for his appeal.

9.  The Board had considered his evidence and accepted that there was a land dispute between him and his uncle; that there were two attacks by his uncle and his people; that he had reported to police, which took no action and he had stayed away in Rawalpindi twice and nothing happened [43]. However, the Board did not accept that the applicant faced a genuine and substantial risk of serious harm from his uncle as his uncle had illegally occupied his land, it was difficult to see why his uncle should seek to locate him and kill him [44]. The Board further found that there was no evidence that the state was involved or that the state would not provide protection to the applicant [50-57]. Internal relocation was also an option open to him [76-81].  The applicant therefore has no factual basis in support of his claim.

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

10.  The applicant has filed Form 86 dated 24 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, the applicant said his life was in danger and he did not want to go back to Pakistan.

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 CA, §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.

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