Irfan Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1250/2018

[2021] HKCFI 629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1250 OF 2018

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 submissions by the Applicant in open court.

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 21 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall 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 Pakistani national. He came to Hong Kong illegally on 30 January 2014 and on the same day was arrested by police. On 2 February 2014, he raised a non-refoulement claim to the Immigration Department.

5.He claimed that if refouled, he would be harmed or killed by his family members including his father and brothers because he converted from Sunni to Shia. His family had threatened to kill him. Although he was never tortured by his family, he was ignored by them and he overheard that they might have a plan to kill him. He fled to Hong Kong. Details of the incidents are found in paragraph 6 of the Director’s Decision as described below or paragraphs 22-30 of the Board’s Decision.

The Director’s Decision

6.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  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 Notice of Decision dated 17 August 2016 (“the Director’s Decision”), the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated. The Director found that the level of risk of harm from his family upon his return was assessed to be low [13]; that his evidence did not support that his family would harm or kill him [15]; that there was no state involvement and state protection was available to him [20] and internal relocation was an option open to him [26]. By Notice of Further Decision dated 1 August 2017 (“the Director’s Further Decision”), the Director rejected the applicant’s claim on BOR 2 risk for the reason that he failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated upon his return to Pakistan.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and Further Decision. He attended the hearing on 25 January 2018.  

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision and Further Decision for the reasons as set out below.

(1)  The Board accepted his evidence as to the facts of his case. However, according to his evidence, “notwithstanding their anger and the threats made against him because of his religious conversion, his family have never harmed him, and he has never been harmed by anyone else in Pakistan." [33]

(2)  That he suspected that he might be harmed or killed by his family is inconsistent with the evidence before the Board. The Board held that lack of trust in his family does not equate to a risk that they would kill him or have him killed. [35]

(3)  For the reason that his factual evidence was not accepted, the Board rejected the applicant’s claim on Persecution risk [38], BOR 2 risk [39], BOR 3 risk [40] and Torture risk [43].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 3 July 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmations and a separate attachment in support of his application, he set out his grounds summarized as follows:

(1)  no reasonable basis or adequate reasons to reject his credibility;

(2)  failure to consider extended state acquiescence;

(3)  failure to consider the COI;

(4)  irregularity: the adjudicator is not the same immigration officer; failing to investigate the COI; selective weights to COI; adjudicator referring to COI without prior referring it to the applicant; failing to consider consistent system of human right violation; failing to consider state protection; consider irrelevant issues; no legal representation or hearing for the BOR 2 risk assessment;

(5)  procedural impropriety: no sufficient chance for the applicant to call evidence; failing to call psychological and/or psychiatric report; applying incorrect standard of proof and no proper basis for internal relocation assessment.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.In Re: Kartini [2019] HKCA 1022, 9 September 2019,the Court of Appeal held:

“13.… … 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.”

14.The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, 26 March 2018, held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].

15.His grounds in support of his application above are sweeping. Most of them are not applicable to his case. The Board has no problem with the credibility of his evidence. There was no state involvement in his case. The Board agreed with the Director that accepting his evidence on the facts of his case, those facts do not support his claim on those risks applicable to his application. I consider that it is unnecessary to address each of his grounds. I have dealt with the relevant grounds by reference to the authorities above. There is no evidence or specifics in support of any of the other grounds. There is no problem with the consideration of the Country of Origin Information by the Board or the application of the law to his case. The grounds above should be rejected.

16.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.

17.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

18.I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 16^th day of March 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