Butt Rizwan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 515/2019

[2021] HKCFI 3358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 515 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 16 January 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 on 21 October 2009 and was arrested by the police on the same date.  On 24 October 2009, he lodged a torture claim, which was subsequently withdrawn.  On 1 April 2010, he requested to re-open his case by way of a written signification.  Upon the commencement of unified screening mechanism, his torture claim was taken to be a non-refoulement claim. 

5.The applicant claimed that if refouled, he would be harmed or killed by members of Pakistan People’s Party (“PPP”) and Pakistan Muslim League-N (“PML(N)”), in particular, Mr. Bhola (“Bhola”) and Mr. Ali Imran Butt (“Butt”).  He also feared that the local police would make false charges against him.  Briefly stated, the applicant said that he entered an election in around 2005.  However, members from PPP and PML(N) were his contestants.  Feared that the applicant would win the election, they asked him to withdraw his candidacy.  Upon his refusal, Bhola and Butt threatened and attacked him on two occasions.  The applicant was falsely accused of robbery by the police and he was detained accordingly.  He claimed to be ill-treated in the jail.  He also claimed to be framed up with criminal charges by the police.  Further, the applicant claimed that internal relocation was not feasible as he was still located in other places by members from PPP and PML(N).  Out of fear, he eventually fled to Hong Kong for protection.  Details of his story are set out in paragraph 7 of the Director’s Decision described below and paragraphs 2.1 to 3.6 of the Board’s Decision.

The Director’s Decisions

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 17 August 2016 (“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 people from the PPP and PML(N) or the police upon refoulement was assessed to be low [13]-[17]; that state protection was available to him [18]-[24] and that internal relocation was an option open to him [25]-[29].  In a Notice of Further Decision dated 7 August 2017 (“the Director’s Further Decision”), the Director also dismissed the applicant’s claim on BOR 2 risk. 

The Board’s Decision

8.The applicant appealed against the Director’s Decision and the Director’s Further Decision (collectively “the Director’s Decisions”).  On 23 July 2018, the Board conducted an oral hearing, during which the applicant was legally represented and answered inquiries from the Board.

9.By the Board’s Decision, the Board affirmed the Director’s Decisions and dismissed the appeal.  The Board dismissed the applicant’s claimed fear from being framed by the police outright as the charge of robbery was some 12 years ago and the applicant only claimed a possibility of being framed up [2.2].  It also found that the material aspects of the applicant’s claim, such as the hostility of PPP and PML(N) members and the police brutality, defied common sense and lacked medical evidence [5.1]-[5.7].  The facts that applicant only lodged his non-refoulement claim after being arrested and that he was evasive during inquires also had adverse impact on his credibility [5.8]-[5.10].  Further, there were doubts as to why he didn’t move to elsewhere in Pakistan where he had lived safely for a year from October 2008 to October 2009 and why he did not sought help while he was in Mainland China [6].  In totality, the Board concluded that his claim was unreliable.  As a result, the Board dismissed his claim on all applicable grounds [10]-[20].  In any event, after examining the country of origin information placed before it, the Board found that internal relocation was available to the application especially it had been almost 13 years since his alleged dispute with the enemies [21]-[25]. 

Application for leave to apply for judicial review

10.The applicant filed Form 86 dated 22 February 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he attached the Board’s Decision and a few pages of notes, which do not seem to be the grounds in support of his application.  The applicant bears the burden of making clear his grounds for his application.  In the circumstances, I consider that it is not necessary to clarify with the applicant, which will be a waste of time and a further delay of the proceedings, since I have reviewed the case myself.

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.… …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.The Board had considered his case.  Both the Director and the Board considered that state protection and internal relocation are available to him if he returned to Pakistan, there is no valid ground for the applicant to refute such findings.

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 18^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