Ahmed Khawaja v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2343/2018

[2022] HKCFI 575

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2343 of 2018

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:

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 24 September 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 national of Pakistan.  He entered Hong Kong illegally on 4 September 2014 and was arrested by the police on the same date.  He lodged a non-refoulement claim on 6 September 2014.  His claim was made on the basis that, if refouled, he would be harmed or killed by Gul Panrah’s father and brother because of his involvement with the secret wedding of Gul Panrah (“GP”) and Nasir.

5.According to the applicant, he was the witness to the marriage of GP and Nashir. However, the marriage was disapproval of by both families as they belonged to different tribes.  Soon, the wedding was disclosed to the members of both families.  One week after, Nashir was murdered by GP’s brother.  The murder was not reported to the police as GP’s father was an influential politician. Thereafter, the applicant was also threatened and attacked by some unknown men on two different occasions.  He was injured in both incidents.  Out of fear, he fled to Hong Kong for protection.  Details of his claim were set out at paragraph 6 of the Director’s Decision and paragraphs 20 to 33 of the Board’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.In the Notice of Decision dated 9 May 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no substantial ground for believing that there would be any real and substantial risk of him being harmed or killed upon refoulement [14]-[16]; that reasonable state protection was available to him [17]-[19] and that internal relocation was an option open to him [20]-[21]. 

The Board’s Decision

8.The applicant appealed against the Director’s Decision to the Board.  An oral hearing was held on 17 September 2018, during which the applicant gave oral testimony before the Board.  He confirmed that he had no idea about his attackers but he believed that they were related to GP’s family.  He also confirmed that he had never come across either GP’s father or her brother [34]-[37]. 

9.The Board found that the applicant’s allegations against GP’s father and brother were purely speculative or based on hearsay evidence [38]-[42].  It also found that the attackers had no intention to kill the applicant [43].  Further, the Board opined that the country of origin information did not support the applicant’s claim that the police would side with GP’s father and brother [45]-[47].  Thus, the Board rejected his claim on Torture risk.  In assessing the applicant’s claim on BOR3 risk, the Board also found that the alleged injuries did not attain the level of severity [50].  For these reasons, the Board rejected his claim on the remaining grounds.  In any event, the Board concluded that internal relocation was available to the applicant [55]-[59]. Therefore, the Board dismissed his appeal.    

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 25 October 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 dissatisfied with the Board’s Decision.

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. His ground is only his comment without any evidence in support.

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 to show 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 2^nd day of March 2022

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