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

HCAL 1539/2018

[2021] HKCFI 571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1539 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 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 decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decisions of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1986, is a national of Pakistan.  According to the records of the Immigration Department, on 15 April 2008 he was arrested by the police and then referred to the Immigration Department for investigation.  He lodged a torture claim on 26 April 2008.  He was subsequently released on recognizance.  Upon the commencement of the Unified Screening Mechanism (“USM”) on 3 March 2014, his claim was put under the USM and assessed on all applicable grounds for non-refoulement protection.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [10-21] 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 paternal uncle, Mukhtar, and his people as Mukhtar wanted to acquire the applicant’s father’s plot of land.  He claimed that Mukhtar was a councillor of village as well as being a member of a political party, Pakistan Muslim League (N).  He asserted that upon the death of his paternal grandfather, the applicant’s father and his two brothers (one of whom being Mukhtar) each inherited from him 15 killas of land.  The value of the land of the applicant’s father later increased when there was a plan to build a new airport near his land.  As a result, Mukhtar and his 3 sons made frequent visits to the applicant’s house and demanded that his father should pass the land to Mukhtar.  Moreover, as the applicant was to inherit the land, whenever they met on the street, Mukhtar requested him to convince his father to pass the land over to him.  When the applicant refused, Mukhtar threatened that he would do anything to him.  He reported to the police but they took no action.  On 6 January 2008, Mukhtar fired shots from the rooftop of his house toward the applicant’s house for 10-15 minutes.  For safety reason, his father advised him to leave the area to avoid Mukhtar and he therefore left to stay with his maternal uncle in a village far away from the applicant’s village.  He later left Pakistan for Mainland China on 13 March 2008 where he stayed for 2 days before entering Hong Kong illegally by boat.

The Director’s decisions

4.By notices of decision dated 22 April 2015 and 4 January 2017 respectively, the Director rejected the applicant’s non-refoulement claim on all applicable grounds.  The first decision covered torture risk^[1], BOR 3 risk^[2], and persecution risk^[3]. The second decision covered BOR 2 risk^[4].

5.Having taken into account all relevant circumstances including the low intensity and frequency of the alleged past ill-treatment, the Director in his first decision assessed the level of future risk of harm as low.  He also found that the availability of reasonable state protection and internal relocation option would further lower or negate any risk of harm.

6.Subsequently the Director invited the applicant to submit additional facts, if any, which he considered relevant to a claim for non-refoulement on the ground of BOR 2 risk. The applicant did not submit any additional facts.  In his second decision, the Director rejected the claim on that ground as well.

7.The applicant lodged an appeal/ petition to the Board against the Director’s decisions.

The Board’s decision

8.The applicant attended a hearing before the Board on 13 April 2018.

9.By a decisiondated 25 May 2018, the Board rejected the appeal/ petition confirming the Director’s decisions.  The Board’s decision covered all applicable grounds.

10.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [39-64] of its decision.

11.In a nutshell, the Board’s reasons can be summarized as follows:

(1)  the account given by the applicant as to his reasons for seeking non-refoulement protection was unconvincing [39];

(2)  example of the lack of credibility can be found in the stark discrepancies between his assertions in his torture claim form that the land belonged to his father and his insistence in answers to questions from the Board that the land had been transferred into his name by his father as early as 2006 [40];

(3)  furthermore, he arrived in Hong Kong on about 15 March 2008, but it was not until 26 April 2008, after his arrest for illegally remaining in Hong Kong, that he lodged his claim for protection [43];

(4)  the Board found him lacking in credibility and was not persuaded that he suffered any threats or ill-treatment at the hands of Mukhtar [48];

(5)  even if his evidence was true, any threats he might have been subjected to were not of the degree of severity required for granting the protection [49];

(6)  in any event, internal relocation is a viable option for the applicant [54].

12.Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

13.The applicant filed a Form 86 on 3 August 2018 for leave to apply for judicial review of the decision of 25 May 2018 of the Board (while he named the respondent as “Immigration detention centre”).  I will deal with his application treating the Board as the respondent and the Director as an interested party.

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

15.In the Form 86, the applicant stated that he was not satisfied with the decision of the Board and that he can supply any necessary documents to prove his claim.  In the affirmation in support, he reiterated that he was not satisfied with the decision of the Board.  He further claimed that he was in prison and was not in good state of mind to submit relevant document in support of his claim. 

Discussion

16.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.

17.When the applicant pursued the appeal to the Board, the Director’s decisions were superseded by the Board’s decision and are no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will nevertheless examine the decisions of the Director, it is unnecessary to delve into the decisions of the Director.  This decision will focus on discussing the Board’s decision.

18.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and found him to be an incredible witness.  Even if his evidence in relation to the asserted primary facts were true, any threats he might have been subjected to were not of the requisite level of severity.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.  In any event, the Board found that internal relocation was a viable option for the applicant.

19.As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation 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.

20.The Form 86 and supporting affirmation contained no specific particulars to demonstrate that the Board was unfair or unreasonable in the public law sense.  The bare assertion that he was not in good state of mind to submit relevant document in support of his claim was not supported by evidence.  Neither did he mention what documents he can further submit.  His assertion does not constitute a viable ground.

21.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.

22.Indeed, the evidence can hardly establish that there are substantial grounds for believing that the applicant would face a real risk of being subjected to any type of serious or proscribed harm, if refouled.

23.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.

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

25.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.

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

Disposition

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

Dated 18 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

Form CALL-1