Butt Kamran Alias Imran Arshad v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2375/2018

[2022] HKCFI 754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2375 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 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 26 October 2018 (“the Board’s Second 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.  On 11 June 2013, he was intercepted in Hong Kong for being an illegal immigrant and was referred to the Immigration Department on 14 June 2013.  Upon inquiry, he was found to be removed from Hong Kong in 2005 under the name of Imran Arshad but he reentered under the name of Butt Kamran.  He was then refused permission to land in Hong Kong.  On 19 June 2013, he lodged a non-refoulement claim.  The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by members of Pakistan Muslim Leagues N Party (“PMLN”), especially, Rafique Jut (“RJ”) and Safdar Awan (“SA”), because of his political affiliation with the Pakistan Muslim League Q Political Party (“PMLQ”).

5.According to the applicant, his family had been supporters of PMLQ.  In around 2010 to 2011, PMLN won the election.  RJ and SA, being the PMLN members in the applicant’s village, started a vendetta against the applicant’s family. Early in 2007, people from RJ’s camp filed complaints against the applicant’s parental uncles for their self-inflicted injuries.  Also in 2008 or 2009, RJ’s nephew falsely accused the applicant’s uncle of kidnapping him.  After PMLN took power, in 2011, some RJ and SA’s associates came to the applicant’s house and fired gunshots at the house.  When the applicant reported this firing incident to the police, the police arrested the applicant for framing the case against PMLN members.  He was arrested, detained and beaten up by the police. The applicant also feared that his girlfriend’s father would harm or kill him. Out of fear, he fled to Hong Kong for protection.  Details of his claim are set out in paragraph 6 of the Notice of Decision dated 2 December 2015 by the Director (“the Director’s First Decision”) and paragraphs 21 to 49 of the Board’s First Decision described below. 

The Director’s Decisions

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 the Director’s First Decision dated 2 December 2015, the Director refused his claim on Torture risk, BOR3 risk and Persecution risk for the reason that his claim was not substantiated. The Director found that the level of risk of him being harmed or killed upon refoulement was assessed to be low [13]-[16]; that state protection would be available to him [17]-[19] and that internal relocation was an option open to him [20]-[23].  In the Notice of Further Decision dated 28 December 2016 (“the Director’s Second Decision”), the Director also rejected his claim on BOR2 risk.

The Board’s Decisions

8.The applicant first appealed the Director’s First Decision to the Board.  On 20 September 2016, the Board held an oral hearing for the applicant’s appeal, during which the Board called a doctor’s report on the applicant’s injuries and the doctor also attended the hearing to give evidence [6].  The applicant was given the opportunity to clarify his case before the Board with the assistance of an interpreter and was allowed to cross-examine the doctor.  But he had no questions for the doctor [8]-[10].

9.The Board summarized the doctor’s evidence and his finding [11]-[19]. On the doctor’s evidence, he was unable to prove or disprove whether the applicant had been beaten on his back, the soles of his feet and on his shins and ankle areas.  He also could not measure the pain suffered from the assaults as it was a subjective matter [19].  Having considered the applicant’s evidence, the Board did not find him to be a credible witness [70]-[71].  For example, the applicant claimed to be experienced in PMLQ but gave conflicting evidence regarding the election; the applicant and his family continued to live in the family house one or two months after the alleged shooting incident; the Board also found his evidence on the report to the police, the identities of the men shooting his house, the injuries and the kidnapping incident vague and improbable [72]-[82].  Thus, the Board refused to accept him as a credible witness.  The Board further found that internal relocation was available to the applicant [84]-[95].  In assessing the individual grounds, the Board found that the applicant, taken his evidence at the highest, was only beaten up by the police when he breached their warnings.  Nevertheless, in light of the Board’s finding on internal relocation, such risk could be eliminated if he relocated to other areas [96]-[110].  As a result, the Board rejected his claim on Torture risk, BOR3 risk and Persecution risk and dismissed his appeal against the Director’s First Decision. 

10.Insofar as the applicant’s appeal against the Director’s Second Decision is concerned, the Board found that such appeal was not substantiated in light of the findings contained in the Board’s First Decision.  Thus, by way of the Board’s Second Decision, the Board dismissed the applicant’s appeal.

11.For simplicity, the Board’s First Decision and the Board’s Second Decision will be referred to as “the Board’s Decisions”. 

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 29 October 2018 for leave to apply for judicial review of the Board’s Second Decision.

13.In his affirmation in support of his application, he said “I can’t go back to my country at this moment because my life is not safe in my country. Please help me to stay in Hong Kong until my problem will be finish.”

DISCUSSION

14.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).

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

16.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.”

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

18.The Court does not find any error of law or procedural unfairness in the Board’s Decisions. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

20.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