RATHOR TANVEER HUSSAIN v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 195/2019

[2022] HKCFI 1057

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 195 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.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 14 January 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 (“RHC”), I shall 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 17 March 2015.  He surrendered to the Immigration Department on 24 March 2015.  By way of written submissions dated 15 July 2015 and 4 August 2015 respectively, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his cousin Zameer Hussain (“Zameer”).  

5.  According to the applicant, Zameer’s family were more wealthy and influential.  In 2008, when his father passed away, the applicant undertook to care for the family land.  In early 2014, the two families had dispute over the distribution of the family land, resulting in Zameer’s attack against the applicant.  The applicant suffered injuries and was given oral medication.  A few days later, Zameer came to the applicant’s house and shot 8 to 10 gunshots to threaten the applicant into accepting their proposal of giving up the family’s share of the family land.  When the applicant escaped to other village, he still received phone calls of threats.  Out of fear, he fled to Hong Kong for protection.  Details of his claim were set out at paragraph 6 of the Notice of Decision date 6 March 2018 by the Director (“the Director’s Decision”) and paragraphs 7 to 23 of the Board’s Decision as described below. 

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)   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

(4)   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 the Director’s Decision, the Director refused his claim. The Director refused to accept that the claimed risk of harm upon refoulement was real and foreseeable because (i) the low intensity and frequency of past ill-treatments indicated no future risk of harm [11]-[13]; (ii) state protection was available to the applicant [14]-[18]; and (iii) internal relocation was an option open to him [19]-[22].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 8 November 2018 for his appeal, during which the applicant answered inquiries from the Board with the assistance of an interpreter [25].

9.  The Board sought clarifications from the applicant in relation to the material aspects of his claim [24]-[37].  Having considered the applicant’s evidence, the Board found that he failed to establish his claim.  The Board found that, had Zameer intended to kill the applicant, he would have had ample opportunities to do so but chose not to [41].  It also noted that the applicant’s behavior, such as telling many of his friends where he went after the incidents, was inconsistent with someone who genuinely sought to hide from Zameer.  Thus, the Board refused to accept that he went to Lahore or to Hong Kong to avoid the claimed risk of harm from Zameer [42]-[43].  The Board further considered the applicant’s admission at the hearing that he was negotiating a solution with his cousins for the land dispute.  The option of having a solution already suggested that the applicant’s risk of harm upon refoulement was low [44].  In any event, internal relocation was available to the applicant [45]-[46].  In assessing the individual ground, the Board also found that it was a private dispute without state involvement [53].  For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.       

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 21 January 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he reiterated that his uncle would kill him if he returned to his country, the authority will not protect him and relocation is not possible.

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 Decision 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.  The Board, for the reasons that it had given, refused to accept the applicant’s evidence on the facts of his case. The applicant has not raised any valid ground 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.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant leave for the applicant to apply for 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