Case Document

100%Judiciary

HCAL 1999/2018

[2022] HKCFI 58

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1999 of 2018

BETWEEN

	Butt Muhammad Faisal	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 27 August 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 illegally on 8 June 2015 and surrendered to the Immigration Department on 15 June 2015. He lodged a non-refoulement claim on 16 September 2015.

5.The applicant claimed that if refouled, he would be harmed or killed by members of Pakistan Muslim League Nawaz (“PMLN”). According to the applicant, he was a supporter of Pakistan People’s Party (“PPP”). In May 2013, while the applicant was discussing the electoral matters with his maternal uncle, he was verbally threatened by some PMLN members asking them to join the PMLN. The applicant’s report of such verbal threat to the police was of no avail. A few days later, the same men attacked the applicant and his friend with wooden sticks and the applicant suffered open wounds. After PMLN won the election, the applicant was attacked and verbally threatened by a member of PMLN, Major Moin and his people, three times before he fled to Hong Kong for protection. Details of his story are set out in paragraph 7 of the Director’s Decision described below.

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 27 April 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 PMLN members upon refoulement was assessed to be low [12]-[16]; that state protection was available to him [17]-[23] and that internal relocation was an option open to him [24]-[28].

The Board’s Decision

8.The applicant appealed against the Director’s Decision. On 23 July and 14 August 2018, the applicant appeared before the Board with the assistance of an interpreter [43].

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 on material aspects of the applicant’s claim [43]-[154]. For example, the Board found that the applicant’s description of Mayor Moin was inconsistent with the available country of origin information (“COI”) [54]-[66]; that the alleged attackers were not state actors [67]-[70]; that the applicant testified that he had never been a member of the PPP [71]-[74]; that the relevant COI provided other remedies available to the applicant if the local police refused to registered his complaint [100]-[105]; that state protection was available to the applicant [106]; that the applicant’s choices of movement within his home country were odd and inconsistent with the situation where someone genuinely concerned about his safety [115]-[123]; and that the applicant’s evidence was inherently implausible, which did not corroborate with the COI [149]-[154]. As a result, the Board found that the applicant had not established a non-refoulement claim [156]-[174]. In any event, the Board found that he was able to relocate internally to city like Karachi [175]-[180].

Application for leave to apply for judicial review

10.The applicant filed Form 86 dated 20 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 his life was still in danger in 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.

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 7^th day of January 2022

	(Chasel MAN)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 07/01/2022 Butt Muhammad Faisal Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 07/01/2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11537/18/5/122/P2240 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1079/18 (formerly RBCZ 13401/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)