Waseem Ibrar v. Torture Claims Appeal Board / Non Refoulement Claims Petiton Office

HCAL 667/2019

[2021] HKCFI 3343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 667 of 2019

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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 4 February 2019 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”), the matter is dealt with 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 citizen of Pakistan.  He entered Hong Kong illegally from Mainland China on 10 September 2015 and was arrested by police for illegal remaining on the same date.  On 22 September 2015, he lodged a non-refoulement protection by a written signification. 

5.He claimed that if refouled, he would be harmed or killed by members of Pakistan Tehreek-e-Insaf (“PTI”) due to a land dispute.  The applicant alleged that the land dispute between his father and the PTI members started in 2007 or 2008.  Numerous fights and arguments took place between them.  Subsequently, his father transferred the land to him.  In 2010 or 2011, the applicant learnt from his father’s friend that the PTI members poisoned and killed his father.  Yet, he did not have sufficient evidence to report to the police.  Between 2011 and 2012, the PTI members threatened, kidnapped and assaulted the applicant for the land.  The applicant claimed to suffer injuries during the assault.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his story are set out in paragraph 9 of the Director’s Decision described below and paragraphs 37-64 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 31 July 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the level of risk of him being harmed or killed by the PTI members upon refoulement was assessed to be low [13]-[18]; that state protection was available to him [19]-[29] and that internal relocation was an option open to him [30]-[33]. 

The Board’s Decision

8.The applicant appealed against the Director’s Decision to the Board.  On 17 August 2018, the Board held an oral hearing for the applicant’s claim, during which the applicant informed the Board that he would adopt everything contained in the Hearing Bundle.  The applicant further confirmed that he understood the English Hearing Bundle: [18]-[23].  Nevertheless, the Board heard his testimony regards to the aspects of his claim: [76]-[107]. 

9.By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal.  After assessing the evidence, the Board considered that (i) the evidence on the land dispute, the detention and assaults of the applicant by the PTI members and the applicant’s flee was probably true [119]-[122], (ii) there might be some credence that the PTI members showed weapons to the applicant to threaten him [123]-[125]; (iii) serious credibility issues arose from the evidence in relation to the applicant’s political affiliation, the political rivalry between PML-N and PTI over the lands, the incident which his father was threatened by 8-10 PIT members for the land, the allegations that PTI sought to locate the applicant in his relative’s house and also asked about his whereabouts and that the PTI was influential [126]-[137]. 

10.In these circumstances, the Board considered the applicant’s claim on all the applicable grounds: it found that the PTI members would not want the applicant to die and there was no evidence that they killed his father.  Besides, the assaults and threats were of low frequency, especially when the alleged dispute happened some 8 years ago and state protection was available to the applicant based on the country of origin information.  Further, the injuries suffered by the applicant did not amount to severe pain or suffering, either mentally or physically.  There was also no evidence of state involvement or acquiescence [146]-[167].  Thus, the Board dismissed his claim on Torture risk [168].  For the same reasons, the Board also dismissed his claim on BOR 3 risk [169]-[183], Persecution risk (the assessment of which also included a finding that internal relocation was available to the applicant, such as in Lahore or Islamabad) [184]-[202], and BOR 2 risk [203]-[213].            

Application for leave to apply for judicial review

11.The applicant filed Form 86 dated 8 March 2019 for leave to apply for judicial review of the Board’s Decision. 

12.In his affirmation in support of his application, he exhibited the Board’s Decision without specifying any ground in support of his application. 

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA.  §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

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

“13. (1) … …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. ”

16.He has submitted no valid ground to assist his application. 

17.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.

18.There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 10^th day of November 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