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

HCAL 714/2023

[2024] HKCFI 3616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 714 of 2023

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  The Form 86 is amended on the court’s own motion; and

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 15 May 2023, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 4 May 2023 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 29 June 2022 (“Director’s Decision”) who had refused the applicant’s claim for non-refoulement protection.

2.  In Form 86, the applicant did not name the Director as the proposed interested party. As the Director should have been the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

Background

3.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

4.  The applicant came from Pakistan. He claimed to have arrived in Hong Kong on 8 November 2021 and surrendered to the Immigration Department on 13 January 2022. He lodged a non-refoulement claim on 8 February 2022, covering all applicable grounds of torture risks[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on his fear that if he were refouled to his country, he would be harmed or killed by his best friend’s father who accused the applicant of trying to convert his son to Islam.

5.  The Director decided against the applicant’s claim on all applicable grounds. The Director considered that the asserted risks were low. After having considered the country of origin information (“COI”), the Director found that both state protection and the option of internal relocation were reasonably available. Hence, the applicant’s appeal to the Board.

6.  After having considered the oral evidence received at the hearing on 24 April 2023 before the Board, the Board found numerous inconsistencies in the material particulars and did not find the applicant to have told the truth. It was concluded that the the applicant’s claim was unbelievable. After having considered the COI, the Board found that the problem he faced was only personal and confined to his local area. The Board was satisfied that state protection was sufficient to offer him redress for his problem. The Board concluded that the question of internal relocation did not arise. However, the Board also found that should internal relocation need to be considered, it was reasonably available to the applicant. The Board concluded that the applicant had failed to establish his claim on all the aforesaid grounds.

Legal principles applicable to judicial review

7.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

8.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he exhibited a copy of the Board’s Decision. There were no evidence or identification of errors in support of the intended challenge.

9.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. The Board had taken all the relevant circumstances of the applicant’s claim into account in its assessment. I find that it was perfectly open to the Board to come to its conclusion that the applicant had failed to discharge the burden of proving the asserted fears and risks.

10.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.

The removal of the applicant

11.  The court has recently received information from the Immigration Department that the applicant was removed from Hong Kong. We will send a copy of this decision and the sealed order to the Director and request that he use his best endeavours to forward them to the applicant.

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