Abid Akram v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 238/2019

[2022] HKCFI 797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 238 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 22 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application 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 18 May 2006.  On 14 April 2007, he was arrested by the police.  Thereafter on 27 April 2007, he lodged a torture claim.  His torture claim was rejected and the subsequent appeal was also dismissed.  On 15 February 2013, he lodged a non-refoulement claim which was to be assessed by the Director on all applicable grounds other than the torture risk[1].

5.The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by Malik Mohammad Yousuf (“Malik”).  According to the applicant, his brother Akram had an argument with Malik over some political issues.  While it appeared that they had settled the dispute, the applicant’s brother was found dead on 29 December 1997.  In mid-2001, Malik told the applicant that he had made Akram killed and the applicant would be the next one.  Since then, the applicant had been tracking evidence of Malik’s crime. In 2005, the applicant was kidnaped by Malik’s men but he managed to escape without being injured.  A year later, the applicant claimed that he was threatened and attacked by Malik due to their different affiliations in political parties.  The attempt to solve the matter amicably with Malik failed and, out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim were set out at paragraph 11 of the Director’s Decision and paragraphs 27 to 50 of the Board’s Decision as described below.  

The Director’s Decision

6.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.On 13 March 2017, the applicant was invited to attend a screening interview before the immigration officer.  Nevertheless, during the interview, the applicant informed the immigration officer that he did not wish to answer any questions and requested the immigration officer to determine his case on the available documents.  Thus, the applicant’s claim was assessed by the immigration officer on paper [6].

8.By a Notice of Decision dated 29 March 2017, the Director refused his claim (“the Director’s Decision”).  The Director found that the level of risk of harm upon the applicant’s refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [17]-[21]; (ii) state protection would be available to him [22]-[24]; and (iii) internal relocation was an option open to him [25]-[28].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  He attended the scheduled hearing on 23 October 2018 with the assistance of an interpreter.  However, the applicant chose not to answer the Board’s inquiries [16].

10.At the hearing, the Board informed the applicant that it had several matters which required clarifications from the applicant, and also advised the applicant of the adverse consequence on his credibility if he insisted on refusing to answer the questions.  The applicant confirmed that he understood and would not answer the Board’s inquiries [53]. 

11.The Board proceeded to highlight numerous matters in the applicant’s non-refoulement claim which lacked sufficient details and required explanations at paragraph 56 of the Board’s Decision.  It pointed out that these inconsistences remained unexplained and unclarified, which rendered the material aspects of the applicant’s claim to be mere assertions [57]-[58]. Since the applicant was warned of the consequence and still refused to cooperate, the Board attached no weight to his evidence and found that the overall credibility of the applicant was undermined [59].  As a result, the Board concluded that the applicant was not a witness of truth [60].

12.For these reasons, the Board rejected the applicant’s claim and dismissed his appeal.  

Application for leave to apply for judicial review

13.The applicant filed Form 86 on 25 January 2019 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, he said “… they disregard my dangerous situation.”

DISCUSSION

15.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 applicants’ 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).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17.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.”

18.The applicant had been duly advised to answer the Board’s questions. Yet the applicant elected not to give evidence. The Board is entitled to assess his evidence on that basis and make findings against him.

19.The applicant does not have any valid ground to challenge the Board’s Decision.

20.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.

21.There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

22.I therefore refuse to grant leave to the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 21^st 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