Khan Ajab v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 761/2019

[2021] HKCFI 3482

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 761 of 2019

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 6 March 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 application will be 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 12 July 2007.  He lodged a torture claim by a written representation on 17 August 2007, which was eventually rejected on 20 August 2013.  The applicant then lodged a claim on cruel, inhuman or degrading treatment or punishment (“CIDTP”), which was considered under the Unified Screening Mechanism in relation to other risks as described in paragraph 6 below.   

5.The applicant claimed that, if refouled, he would be harmed or killed by members of Pakistan Muslim League N (“PMLN”). According to the applicant, he belonged to Pakistan Muslim League Q (“PMLQ”). Before his birth, his grandfather had a land dispute with members of PMLN.  In two accidents happened in February and April 2006 respectively, four enemies from PMLN came to their land and one Mr. Baber attacked him with an axe.  In both attacks, he was injured and received stitches on his forehead.  Out of fear, he eventually fled to Hong Kong for protection.  While he was in Hong Kong, on 27 May 2013, he was attacked by two men who he suspected to be under the command of the four enemies.  Details of his story are set out in paragraph 6 of the Director’s Decision as described below and paragraphs 30-44 of the Board’s Decision.

The Director’s Decision

6.His torture claim had been rejected.  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 31 May 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 four enemies upon refoulement was assessed to be low [11]-[14]; that state protection was available to him [15]-[20] and that internal relocation was an option open to him [21]-[24].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  He appeared before the Board on 27 November 2018 and answered the Board’s inquiries. 

9.The Board considered his written evidence and his oral testimony before it.  It found that there were alarming inconsistences.  For example, in the applicant’s non-refoulement claim form, he mentioned that he had four enemies including Mr. Baber.  However, he left out this name during the hearing.  This was concerning as it was the applicant’s claim that he was attacked by Mr. Baber [49].  Also, the applicant mentioned at hearing that his grandfather was killed due to the land dispute.  Yet, this was omitted in his written evidence [50].  Further, his evidence on when the alleged dispute occurred with the four enemies was inconsistent [51].  The Board also cast doubt as to the events surrounding the death of the applicant’s brother [52]-[53].  His alleged relocation after hospitalization was also contradictory [54].  As to the incident happened in Hong Kong, his claim was also inconsistent [57].  In light of these significant inconsistences and implausibility in the material aspects of the applicant’s claim, the Board refused to accept that he had or would suffer any harm if he returned to Pakistan [58]-[62].  Thus, it rejected the applicant’s claim on all applicable grounds and dismissed his appeal [63]-[66].

Application for leave to apply for judicial review

10.The applicant filed Form 86 dated 19 March 2019 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 disagreed with the Board’s Decision.  His life would be in danger if he returned to Pakistan.

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.  Those grounds in his affirmation are only his opinions without evidence to support them.

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 29^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