Nawaz Rehmat v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 798/2018

[2020] HKCFI 1640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 798 OF 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1983, is a national of Pakistan.  He was arrested by the police for suspected illegal immigration on 8 April 2015, and referred to the Immigration Department.  He then lodged a non-refoulement claim and was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at [46-78] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by his father’s cousins, Hussain and Ashraf as they had a land dispute.  He believed that his father was killed by them.  They were active supporters of the Pakistan Muslim League and well acquainted with Shaikh Aftab who was the administrator of a region.  In early 2014, he was hit by a car from behind which he believed belonged to his father’s cousins.  His reports were ignored by the police.  He was in fear and therefore left Pakistan on 25 March 2015 for Mainland China.  He had difficulties with the Pakistani immigration authorities and had to pay a bribe for his successful departure.

The Director’s decision(s)

4.By a notice of decision dated 13 July 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for the reason that the claim was not substantiated.  The decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.  He attended an oral hearing before the Board on 22 March 2018.

The Board’s decision(s)

5.By a decision dated 27 April 2018, the Board rejected the appeal/ petition on all applicable grounds, confirming the Director’s decision.

6.The Board gave detailed reasons for rejecting the claim at [83-151] of its decision.  In a nutshell, the Board found major inconsistencies and contradictions in the applicant’s account.  It also found that the applicant had kept on changing his evidence [118].  He exaggerated the power and influence of his two uncles.  Having considered the totality of the evidence before it, the Board rejected substantially all the applicant’s factual basis underlying the applicant’s non-refoulement claim.  The Board found that his narrative of the case was not genuine [128].  It did not accept that the applicant was in any danger or risk.

7.Furthermore, the Board also found that state protection was available and internal relocation was viable and reasonable.

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 7 May 2018 for leave to apply for judicial review of the decision of Immigration Department on his non-refoulement claim on 27 April 2018. He did not request an oral hearing.  The application is therefore considered on the papers.  It is apparent that the applicant was asking to judicially review the decision of the Board with the Director as an interested party.  The application will be considered on this basis.

9.By a letter dated 12 May 2020, the Court invited the applicant to submit information including any submissions that he would like to make.  Since then, he has not made any response or submission to the Court.

10.In the Form 86, the applicant asked for “Certiorari to reject and review the decision” of the Board.  It did not contain any specific ground for judicial review.  In his affirmation, he reiterated the same and claimed the immigration department disregarded his dangerous situation.

Discussion

11.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the Court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

12.As the Director’s decision has been superseded by the Board’s decision, it is not amenable to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the Court examines the decisions of the Director and the Board, it will only focus on the latter’s decision.

13.In the present case, the Board in fact rejected the applicant’s appeal/ petition on its adverse findings on credibility of the applicant and that it rejected the accounts of primary facts based on the major inconsistencies and contradictions in the applicant’s evidence.  On the factual findings, it concluded that the applicant would not be at any real risk of harm or ill-treatment.

14.As mentioned, assessment of evidence/ primary facts and the risk of harm are within the province of the Board (and the Director), this Court will not interfere with the decisions unless there is a public law ground for the Court to do so.

15.In the present case, the Board with the benefits of hearing the applicant’s oral evidence rejected the non-refoulement claim essentially on its adverse finding on the applicant’s credibility for the thorough and detailed analysis and reasoning set out in its decision.  It also found that state protection is available and relocation is viable.  I do not find any reasonably arguable basis to challenge the findings of the Board.

16.It is also noted that the Board engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into the case appropriately.  There cannot be any criticism of its determination which is eminently reasonable.

17.The ground raised by the applicant is general and vague assertion, without any particulars as to how the Board was unfair or unreasonable in the public law sense.  He did not pinpoint any procedural irregularity, unfairness or unreasonableness.

18.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them, nor any failure to apply high standards of fairness.

Conclusion

19.For the reasons given, there is no reasonably arguable basis in the applicant’s intended application.  I accordingly refuse to grant leave to apply for judicial review.

Dated the 28^th day of July 2020

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