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

HCAL 1944/2018

[2021] HKCFI 3692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1944 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 12 October 2021 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 12 May 2016 and was arrested on the same date.  On 16 May 2016, he lodged a non-refoulement claim. 

5.The applicant claimed that if refouled, he would be harmed or killed by members of the Pakistan Muslim League (N) (“PML(N)”) and that he would be arrested by the police in Pakistan for murder.  According to the applicant, he was a member of Pakistan Peoples Party (“PPP”).  He said that during the 2015 election, the members of PML(N) came to post death threats to him and sought to prevent him from getting votes for PPP.  One week later, around 6-7 armed PML(N) members came to his house and two of them punched him.  The applicant suffered injuries. After the PPP won the 2015 election, one day, some PML(N) members shot the applicant’s brother and another PPP member to death.  In November 2015, in order to take revenge, the applicant killed the brother of one of the attackers. The applicant became a wanted person.  Out of fear, he fled to Hong Kong for protection.  Details of his story are set out in paragraph 6 of the Director’s Decision described below and paragraph 11 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 25 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 members of PML(N) upon refoulement was assessed to be low [11]-[14]; that, since he was able to travel freely, his assertion that he was wanted by the police was not accepted [15]; that state protection was available to him [16]-[21] and that internal relocation was an option open to him [22].

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  On 21 August 2018, he appeared before the Board and answered inquiries from the Board. 

9.By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal. The Board evaluated the applicant’s evidence against his oral testimony, and accepted that he had encountered four incidents with the PML(N) members and sustained injuries [17].  The Board considered the Exclusion Policy in the Refugee’s Convention which excluded from refugee status for a person with respect to whom there were serious reasons for considering he had committed a serious non-political crime outside country of refugee prior to the admission to that country as a refugee [19]-[21].  In the present case, the applicant admitted that he killed three people, including a security guard, in revenge for his brother’s death.  The Board found that this fell within the Exclusion Policy and that the applicant should be excluded from protection [22]-[25].  Further, the Board found that, even on the applicant’s own evidence, he only suffered bruises and bleedings that were not serious despite the attackers were armed [30].  For the above reasons, the Board rejected the applicant’s claim on all applicable grounds [26]-[45]. 

Application for leave to apply for judicial review

10.The applicant filed Form 86 dated 14 September 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 could not go back to his home country because his life was still in danger back there.

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.He has submitted no valid ground to assist his application.  The Board has given its reasons for its decisions.

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 15^th day of December 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