HCAL 1124/2019
[2023] HKCFI 2043
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1124 of 2019
BETWEEN
Haider Muhammad Usman
Applicant
alias Malik Muhammad Osman Hayadar
and
Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Putative
and
Director of Immigration
Putative
Interested Party
Application for Leave to Apply for Judicial Review
Following;
Order by Deputy High Court Judge K.W. Lung :
Leave to apply for Judicial Review be refused .
1. The applicant applies for leave to apply for judicial review of the Decision dated 15 April 2019 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 last entered Hong Kong illegally on 19 April 2009 and was arrested by the police on the same day. He raised a torture claim which was rejected on 8 November 2013. On 18 February 2014, he lodged a non-refoulement claim. Thus, his non-refoulement claim was assessed on all applicable grounds other than that on Torture risk[1] . He claimed that, if refouled, he would be harmed or killed by his stepmother due to a property dispute.
5. In brevity, the applicant claimed to have property disputes with his stepmother and her brother over his late father’s properties. The applicant’s father remarried the stepmother after the applicant’s mother passed away. Both the applicant and his elder brother did not approve of the marriage as they felt that the stepmother wanted a piece of their father’s assets. Later, the applicant asked his father to make a will. Since then, the stepmother had been hostile towards the brothers. One day, the stepmother’s brother demanded the applicant’s elder brother to persuade his father to revoke the will. The stepmother also used shoes as weapon to hit the applicant. Later, the stepmother’s brother also got into a fight with the applicant’s elder brother who sustained bruises on his face. Thereafter, on one occasion, the stepmother’s elder brother, together with some men, assaulted the applicant and his elder brother with wooden sticks. Two years after, in 2004, the applicant was sent to Hong Kong. After he was deported back to Pakistan, he learnt that his elder brother ran off to Russia. Towards the end of 2008, the applicant learnt that his stepmother was aware of his hideouts. In the end of 2008, he was hit by a private car and almost kidnapped. Out of fear, the applicant fled to Hong Kong again for protection. While he was in Hong Kong, in 2011, his father passed away and stepmother occupied his father’s estates. She also threatened the applicant. Details of his claim are set out at paragraph 8 of the Notice of Decision dated 15 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 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”);
b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);
c. 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 level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated was an unlikelihood of future risk of harm [13]-[15]; (ii) state protection would be available to him [16]-[17]; and (iii) internal relocation was a viable option [18]-[19].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 29 January 2019, the Board conducted an oral hearing for his appeal, during which he was assisted with an interpreter qualified in the Punjabi and English languages [7].
9. The Board recapped the applicant’s claim and evidence before the Director [8]-[48]. It also summarized his oral testimonies given during the hearing [49]-[75]. Having considered these evidence, the Board found that the applicant’s account on the property dispute with his stepmother was largely plausible despite some minor inconsistencies [78]-[79]. However, the Board also noted some significant discrepancies which undermined the credibility of the applicant’s claim. It first observed that, from the first assault to the applicant’s departure, there were two years’ gap when nothing eventful happened [80]. It also examined the applicant’s claimed attempted kidnap incident. The Board considered that the applicant’s evidence on this incident contained major discrepancies. For example, he was inconsistent as to whether the stepmother’s brother was present at the scene [82]; his accounts on this incident lacked details and were vague [83]; and the overall circumstances made it implausible that the stepmother would target the applicant [84]. In addition, after the claimed kidnap incident, the applicant stayed in Pakistan for a few more months without encountering any problems [85]. Viewing these accumulatively, the Board found that the applicant’s claim lacked credibility [86]. In any event, internal relocation was proved to be a viable option for the applicant [87]-[91].
10. For the aforesaid reasons, the Board rejected the applicant’s 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 26 April 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 that the Immigration Department had disregarded his dangerous situation.
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 did not accept his evidence and found that state protection and alternative internal relocation are available to him. There is 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.
Dated the 15th day of August 2023
(M.O. WONG)(Ms)
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
Notes for the Applicant :
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
Sent to the ApplicantHaider Muhammad Usman alias Malik Muhammad Osman Hayadar
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 15/8/2023Torture Claims Appeal Board/Non-refoulement Claims Petition Office Director of Immigration Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)
Form CALL-1
[1] risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115