Umar Muhammad v. Torture Claims Appeal Board/ Non-refoulement Claims Etition Office and Another

HCAL 2476/2018

[2021] HKCFI 166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2476 OF 2018

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 submission by the Applicant in open court.

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 decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).  The Director refused the applicant’s claim of non-refoulement protection.  The Board dismissed the applicant’s appeal confirming the decision of the Director.

2.The applicant, born in 1989, is a national of Pakistan.  On 21 August 2009, he was arrested by the police and referred to the Immigration Department for investigation.  He then lodged a non-refoulement claim on ground of  torture risk^[1] (“the torture claim”).  He was subsequently released on recognizance.  He also made his non-refoulement claim by way of a written representation dated 30 May 2013.  In February 2010 he withdrew his torture claim, but he requested to re-open his claim in April 2010.  In August 2012, he was arrested for taking up unapproved employment and sentenced to 14 months’ imprisonment.  In August 2016, he was convicted and sentenced to 2 months’ imprisonment for assaulting occasioning actual bodily harm.

3.On 20 June 2013, his torture claim was rejected by the Director.  By Notice of Decision dated 30 August 2017 (“the Director’s decision”), his non-refoulement claim was assessed and rejected on all applicable ground (other than torture risk which had been previously considered) including BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4].  The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [5] 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 uncle, Bilal, and his family over a dispute over land and inheritance from his grandfather.  In around 2006 Bilal and his sons threatened to harm him.  Bilal’s sons had slapped the applicant on the face.  In 2009, they also attempted to stab him in the neck using a knife like object.

The Director’s decision

4.By the Director’s decision dated 30 August 2017, the Director rejected the applicant’s non-refoulement claim on on all applicable ground (other than torture risk which had been previously considered) for reason that the claim was not substantiated.  Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low.  He found that state protection is available to the applicant and internal relocation is a viable option for him. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.The applicant attended a hearing before the Board on 7 September 2018.

6.By a decision dated 22 October 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds (other than torture risk which was not a risk considered in the Director’s decision) namely, BOR 2 risk, BOR 3 risk, and persecution risk.

7.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [86-109] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the Board found the applicant’s evidence to be internally inconsistent and fanciful and his claims cannot be substantiated [86];

(2)  the internal inconsistencies indicated that the applicant had fabricated his evidence which was rejected as a whole, as the Board found this to be unbelievable [89];

(3)  the Board was not satisfied that the ill-treatment which the applicant would face if expelled attains a minimum level of severity and/ or that he faces a genuine and substantial risk of being subjected to such mistreatment [105].

8.Accordingly, the Board affirmed the Director’s decision on its findings of fact.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 6 November 2018 with affirmation in support for leave to apply for judicial review of the decision of the Director dated 30 August 2017 and the decision of the Board dated 22 October 2018.

10.No request for oral hearing has been made.  The application is therefore considered on the papers.

11.In the Form 86 and supporting affirmation, the applicant did not set out any grounds for the relief sought.

Discussion

12.The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, 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, country of origin information, 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.

13.When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

14.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant finding his evidence as fanciful and he had fabricated his evidence.  It did not accept any of the submissions made by the applicant on face value.  The Board rejected his account of primary facts based on the major internal inconsistencies in his evidence.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.

15.As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

16.The applicant stated no grounds of the judicial review in Form 86.  He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.

17.In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

18.The Board, with the benefits of hearing the applicant’s oral evidence, rejected the non-refoulement claim mainly based on its adverse finding on the applicant’s credibility with detailed reasons set out in its decision.  I do not find any reasonably arguable basis to challenge the findings of the Board.

19.Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

20.The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of proscribed harm, if refouled.

21.There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

22.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 their decisions.  Nor do I see any failure on their part to apply high standards of fairness.

23.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

24.Accordingly, leave to apply for judicial review is refused.

Dated 26 January 2021

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