Sohail Asif v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 282/2020

[2021] HKCFI 1098

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 282 of 2020

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent 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 application is related to the applicant’s previous non-refoulement claim in HCAL 304 of 2017 because the applicant has made a subsequent claim to the torture claim in that action, which has been disposed by the court.

2.The applicant applies for leave to apply for judicial review of the Decision dated 29 January 2020 made by the immigration officer on behalf of the Director of Immigration (“the Director’s Decision”) refusing the applicant’s request for making a subsequent claim, pursuance to section ZO of the Immigration Ordinance, Cap.115 (“the Ordinance”), for non-refoulement protection under the unified screening mechanism.

3.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

THE PROCEDURAL HISTROY OF THIS APPLICATION

The applicant’s case

4.The applicant came to Hong Kong on 3 March 2009. He overstayed and was arrested by police. He lodged a torture claim on 8 July 2009.  He claimed that if refouled, he would be harmed or killed by his late girlfriend’s family members (“his enemies”) who opposed his love affair. She finally committed suicide and her family put the blame on him. Details of the incidents are set out in paragraphs 1-8 of the written decision of the Court dated 11 May 2018 in HCAL 304 of 2017, [2018] HKCFI 998 (“the Court’s decision”)

5.His application is based upon the Torture risk under Part VIIC of the Immigration Ordinance (“the Torture risk”), Article 3 of the Bill of Rights Ordinance, Cap. 383 (“the BOR 3 risk”), the Convention relating to the Status of Refugees (“the Persecution risk”) and Article 2 of the Bill of Rights Ordinance, Cap. 383 (“the BOR 2 risk”).

The Director’s Decisions and the Board’s Decision

6.By the Director’s Decision dated 6 March 2015 and the Director’s Further Decision dated 4 November 2016, the Director rejected his claim on all four risks above. He appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and his appeal was rejected by the Board’s Decision dated 19 May 2017 (“the Board’s Decision”).

The Court’s decision

7.The applicant made an application for leave to apply for judicial review of the Board’s Decision, which is the subject matter of HCAL 304 of 2017. By the Court’s decision, the Court dismissed his application.

8.The Court had considered the Director’s Decision dated 6 March 2015 and the Board’s Decision.

9.As to the Director’s Decision dated 6 March 2015, the Court said:

“16. In the Director’s decision dated 6 March 2015, the immigration officer found the ill-treatment which the Applicant claimed was of low intensity and frequency. There was no state acquiescence. On the other hand, reasonable state protection and internal relocation alternatives available to the Applicant. The officer found that BOR3 risk was not likely to materialise; there was no persecution risk as the Applicant’s case was only a private dispute with enemies and not related to race, region, nationality, membership of a particular social group or political opinion. It is also not accepted that the Applicant had suffered severe pain or suffering within the definition of ‘torture’, so there was no torture risk.

10.As to the Board’s Decision, the Court said:

“23. In his report, the Adjudicator set out the facts and the law clearly.  He was alive to the issues of the Applicant’s case. He found the Applicant’s claim was bare assertion and much of it was based on hearsay and without proof; some allegations were illogical. On the other hand, the Adjudicator found that there were reasonable state protection and internal relocation available to the Applicant in Pakistan. The Adjudicator’s conclusion was that the Applicant had not made out a case that warranted non-refoulement protection in respect of (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (or BOR3 risk) and (iv) life risk (BOR2 risk).”

11.In the Court’s decision, the Court found as follows:

“43. In my judgement, the Director and the Adjudicator had proper basis for their respective findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director or the Board, who had each engaged in joint endeavour with the Applicant in the inquiry process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and they applied the law correctly. They considered the Applicant's claim carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.”

12.The applicant had appealed to the Court of Appeal against the Court’s decison and failed. He had also attempted to appeal to the Court of Final Appeal and failed too.

The application for subsequent claim for non-refoulement

13.By letter dated 21 October 2019, the applicant requested the Director to allow him to make a subsequent claim for non-refoulement protection. As requested, he produced further information to the Director for consideration. He put forward the information through his duty lawyer provided by the Duty Lawyers Scheme as follows:

(1) actual physical violence had been used against his family members on at least three occasions and one of his brothers, Mr. Sajid Usman was detained and tortured by the police for no legitimate reason due to the wealth and power of his enemies;

(2) a written police report dated 18 February 2019, dictated by his brother, Mr. Khalid Sohuil that he was attacked and threatened by some unknown people at Pindi Suberwal at 13:30 hours on 18 February 2019;

(3) a written police report dated 2 September 2019, dictated by his brother, Mr. Khalid Sohuil that he was attacked and threatened by some unknown people at Pindi Suberwal at 1330 hours on 2 September 2019;

(4) an affidavit of his brother, Mr. Sajid Usman dated 1 October 2019, saying that the family members had been attacked and threatened by unknown people recently and the applicant might face the same problem if he returned to Pakistan; and

(5) an affidavit of his brother Mr. Khalid Sohail dated 22 November 2019 saying that his enemies had threatened and attacked his family every year on his late girlfriend’s memorial day as they wanted to know his whereabouts. Due to the strong financial and political influence of his enemies, his brother Sajid Usman was even detained and tortured by the Pakistan police on the purpose of asking his whereabouts and the family worried that he might be killed if he returned.

The Director’s reasons for refusing his application

14.Section 37ZO of the Ordinance provides limitation and the Director’s power in application for subsequent claim:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3)      In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.”

15.Having considered the additional information provided by the applicant’s duty lawyer and for the reasons that follow, the Director rejected the applicant’s request for a subsequent claim for non-refoulement.

(1)     The Director relied upon his own findings in his Decision and the Board’s findings, which he was entitled to do under section 37ZO (3) of the Ordinance.

(2)     The risks he alleged were localized and the option of internal relocation was open to him.

(3)     His allegation that his enemies were very powerful and they had connection with senior government officials was not accepted.

(4)     The Director and the Board did not accept that he came to Hong Kong for protection because he did not seek protection at the first instance. He was forced to apply for protection because he was arrested by police.

(5)     Even if his additional information was accepted, the fact that his enemies had exerted more pressure on his family members because they did not disclose his whereabouts was part of the consideration that the Director and the Board had taken previously. Even though his enemies might have exerted more pressure on his family, this does not amount a significant change of the circumstances of his case.

(6)     The fact that the risks the applicant relies upon are localized risks and the option of internal relocation is still available to him.

DISCUSSION

16.In support of his application for leave for judicial review of the Director’s Decision, he put forward the following reasons in his affirmation:

(1)     He is a genuine non-refoulement claimant as he faces all the dangerous problems, harassment and torture in his country. He is unable to find any place to stay safely in his country.

(2)     The Director has made a wrong decision without proper inquiry his situation and he invites the Director to go to his country to see for himself.

(3)     He had to run away or he would be killed by his enemies.

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

18.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.”

19.Those grounds in paragraph 15 do not assist him. Those are his opinions without specifics in support of them. It is not necessary for the Director to go to his country to make inquiry into his situation as the Director may rely upon the country of origin information before making his decision, which he did. Even if the additional information is accepted, if the option of internal relocation is open to him, he is not eligible for protection under the relevant statutory provisions and Convention, as held by the Court of Appeal in TK v Michael Jenkins Esq and Director of Immigration[2013] HKC, 526, CA:

“32. Fourthly, the question of internal relocation (otherwise known as “internal flight”). This is a concept common to refugee law and torture claims. The rationale is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT.”

20.The Court does not find any error of law or procedural unfairness in the Director’s Decision. The findings of the Director are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

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

Dated the 23^rd day of April 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