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

HCAL 2811/2018

[2021] HKCFI 2456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2811 of 2018

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 is the applicant’s application for leave to apply for judicial review of the Decision dated 3 December 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 sneaked into Hong Kong on 15 September 2012.  He was arrested by police and referred to the Immigration Department.  He lodged non-refoulement claim with the Immigration Department on 17 September 2012.  Before this, he had lodged a torture claim with the Director and was refused.  He appealed to the Board and his appeal was also refused.

5.He claimed that if refouled, he would be harmed or killed by Mohammed Rasheed and his people because of a land dispute in July 2012.  Rasheed was an influential man and he wanted to take away a piece of land adjacent to his own land.  That piece of land belonged to his father.  Rasheed killed the applicant’s father because his father refused to pass the land to him.  He then occupied the land.  Rasheed and his people looked for him because they feared that he might apply to court for the land.  Upon his brother’s advice, he left Pakistan for Hong Kong.  Details of his story are set out in paragraph 10 of the Director’s Decision described below.

The Director’s Decision

6.As he had lodged torture claim before, the Director considered his application in relation to the following risks:

a.  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”);

b.  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

c.  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 7 March 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that there was no ground for believing that he would be subjected to any real risk of being harmed or killed if he returned to Pakistan [20]; that state protection was available to him [23] and internal relocation was an option open to him [24].

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 22 August 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that although the Board accepted that he might have a dispute over his land as he alleged [71 & 87], however, it found that he was not a witness of truth and that he had fabricated and exaggerated his claims in relation to the dangers posed by Rasheed and his people [86].  The Board found that he failed to establish his case on Persecution risk [90] and that there was not any real risk or well-founded fear of persecution within the context of the Convention. [94]  On these bases, the Board rejected his claim on those risks in paragraph 6 above.

Application for leave to apply for judicial review of the Board’s Decision

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

11.In his affirmation in support of his application, he said that he could not go back to his own country at the moment as it was not safe there.

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.His ground in support of this application does not assist his application.

15.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.

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

CONCLUSION

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

Dated the 26^th day of August 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