Salman Shah v. Torture Claims Appeal Board / Non Refoulement Claims Petiton Office

HCAL 1195/2018

[2021] HKCFI 3341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1195 of 2018

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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 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”), 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 as a visitor on 5 October 2001 and applied for several extensions of stay in Hong Kong with the last expiration date on 5 February 2002.  He overstayed and was arrested by the police on 25 October 2007.  In November 2007, he lodged his torture claim, which was eventually rejected on 17 July 2012.  During his stay in Hong Kong, he committed several criminal offences with the last occasion on 3 January 2017 when he was convicted and sentenced to 22 months’ imprisonment.  On 1 November 2017, he lodged a cruel, inhuman or degrading treatment or punishment claim by a written submission.  His torture claim was rejected by the Director on 17 July 2012.  His petition was also dismissed by the adjudicator (Torture Petitions) on 8 August 2012.   

5.The applicant claimed that, if refouled, he would be harmed or killed by three Sunni Muslims.  The applicant said he belonged to Shia Islam religious group.  He attended a religious gathering in June 2001 when he had a heated discussion with Sunni people, leading to verbal threats from Naseer, Abbas and Babar and a fight.  The applicant suffered a bone fracture.  At the end of June 2001, the three Sunni Muslims with some unknown men shot at his house but he escaped without any injuries.  When he left for Karachi, the applicant heard that they continued to harass his family. Out of fear, he fled to Hong Kong for protection.  While he was in Hong Kong, he heard that, in 2004, his family members were killed by Naseer and Abbas.  Details of his story are set out in paragraph 8 of the Director’s Decision described below and paragraph 19 of the Board’s Decision.

The Director’s Decision

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

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 24 January 2018 (“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 three Sunni Muslims upon refoulement was assessed to be low [17]-[20]; that state protection was available to him [21]-[24] and that internal relocation was an option open to him [25]-[26]. 

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  On 4 May 2018, he appeared before the Board and adopted the contents of the documents placed before the Board. 

9.By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal.  The Board identified several aspects that damaged the applicant’s credibility [31].  It found that the applicant’s evidence contained inconsistences and discrepancies, as well as hearsay and speculations [33]-[35].  While the Board accepted that he had foot injury which might be caused in the fight, it refused to accept the alleged death threats, shooting and killing incidents [39].  Further, the Board found that the dispute was private, that there was no state involvement and that he could stay in Karachi unharmed for three months.  Thus, taking into account the frequency, intensity and mode of past ill-treatments and extent of injuries, the applicant failed to establish a claim on Torture risk [42]-[48]. For the same reasons, the Board also rejected his claim on other grounds [49]-[58].  In any event, internal relocation was available to the applicant [61]. 

Application for leave to apply for judicial review

10.The applicant filed Form 86 dated 25 June 2018 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 was not satisfied with the Board’s Decision.  He considered that the Director and the Board had not verified [considered] his documents from his country.

DISCUSSION

12.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).

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

14.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.”

15.He has submitted no valid ground to assist his application.  The Board has reject his evidence on the essential facts in support of his claim.  He therefore has no factual basis in support of his claim.

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 realistic prospect 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 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