Abdul Shakoor v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 484/2019

[2021] HKCFI 176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 484 OF 2019

BETWEEN

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:

Procedural history and background

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”) dated 4 January 2019, confirming the decision of the Director of Immigration (“the Director”) dated 31 May 2018 refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1975, is a national of Pakistan.  On 1 May 2009, he sneaked into Hong Kong from Mainland China and arrested by the police on 11 May 2009 for illegal remaining.  By a written representation on 13 May 2009, he lodged a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“torture claim”).  His torture claim was rejected by the Director of Immigration on 22 October 2013 under Part VIIC of the immigration ordinance, Cap 115.  He then lodged a claim by written representations for non-refoulement protection on the ground of risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”).

3.A Notice to Persons Making a Non-refoulement Claim was served on him on 15 March 2018 in which he was informed that the Director’s previous decision regarding his torture claim would not be reviewed under the Unified Screening Mechanism (“USM”).  His claim for non-refoulement protection was therefore assessed by the Director on all applicable grounds other than risk of torture under Part VIIC of the immigration ordinance, including BOR 2 risk[1], BOR 3 risk[2] and risk of persecution[3].

4.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [13-22] of the decision of the Board dated 4 January 2019.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by his elder brother because the applicant had refused to exchange his share in a piece of land he inherited from his late father.  In 2002 or 2003, the proposal was made by his elder brother, Nasir.  When the applicant refused by his silence, Nasir threatened to beat him up and even slapped his face twice.  Later, Nasir continued to threatened him.  Sometimes, he was punched and slapped on his face.  He never reported the incidents to the police as Nasir is his brother.

The Director’s decision

5.By a notice of decision dated 31 May 2018, the Director rejected the applicant’s non-refoulement claim.  The decision covered BOR 2 risk, BOR 3 risk and the persecution risk.  The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

6.The applicant attended an oral hearing before the Board on 5 October 2018.

7.By Decision dated 4 January 2019, the Board rejected his petition and confirmed the Director’s decision dated 31 May 2018.  The Board assessed on BOR 2 risk, BOR 3 risk and persecution risk.

8.The Board gave detailed reasons for rejecting the applicant’s claim at para [27-46] of its decision.  In a nutshell, the Board found:

(1)  there is no basis for the applicant’s fear [28];

(2)  it was only a domestic dispute between brothers over a piece of land inherited from their late father [29];

(3)  his elder brother merely gave the applicant punches or slapped his face [31];

(4)  his brother never threatened to harm him seriously [32];

(5)  he never reported the matter to the police [33];

(6)  there is no evidence that if he seeks assistance from the police, the police would not help [34];

(7)  further, internal relocation is a viable option [45].

In conclusion, Board did not find that he would be subjected to risk of the proscribed harms.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 for leave to apply for judicial review of the Board’s Decision dated “24 (sic) January 2019”. He did not request an oral hearing.  The application is therefore considered on the papers.

10.The Form 86 did not set out any ground for judicial review.  In his affirmation in support of the application, the applicant merely stated that “I am not satisfied with the decision given by appeal board.  Please help me to stay in Hong Kong...”

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.When the applicant pursued his 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 examines the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director.  This Observations for the Applicant will only focus on the latter’s decision.

13.The applicant did not set out any specific ground for judicial review.  Nevertheless, the court is under a duty to consider the application with rigorous examination and anxious scrutiny.

14.In the present case, the Board rejected the applicant’s appeal/ petition that on the primary facts claimed by the applicant, there is no basis for the applicant’s fear of harm.  Moreover, internal relocation is a reasonable and viable option for him.  As mentioned above, assessment of risk of harm and viability of internal relocation are primarily within the province of the Board.  This court will not interfere with the decision unless there is a public law ground for the court to do so.

15.The fear of the applicant arose from a private dispute between brothers over a piece of land inherited from their late father.  Even on the applicant’s own account, the past ill treatment was of low intensity and frequency.  It came nowhere near the level of severity required to constitute torture or CIDTP.  There is no valid reason why his brother would cause any serious harm to the applicant or even kill him when he returns to his country.  Pakistan is not a small country. Internal relocation is obviously a reasonable option for him.  There is no substantial ground for believing that he would be at real risk of any type of proscribed harm, if refouled.  The decision of the Board is eminently reasonable.

16.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 do I see any failure on their part to apply high standards of fairness.

Disposition

17.For the reasons given, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review.  I refuse to grant leave for judicial review.

Dated 28 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