Case Document

100%Judiciary

HCAL 918/2019

[2022] HKCFI 900

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 918 of 2019

BETWEEN

	Sarfraz	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 25 March 2019 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”), I shall deal with his application 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 12 December 2015 and was arrested on the same date. On 15 December 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle Fareed Khan (“Fareed”).

5.According to the applicant, Fareed and the applicant’s father each inherited a plot of land from his grandfather. Fareed was rich and well-connected to the political groups. In 2011, Fareed visited the applicant and his father, demanding the transferal of their portion. Upon learning the refusal, Fareed attacked them. In order to protect his father, the applicant sustained fractured ribs, scratches and bruises. He was hospitalized. Thereafter, the applicant left for other places but heard from his relatives that Fareed had been chasing his family and also looking for him. In September 2015, Fareed again threatened the applicant with gunshots for the land. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim were set out at paragraph 6 of the Notice of Decision dated 31 August 2018 by the Director (the “Director’s Decision”) and paragraph 11 of the Board’s Decision as described below.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)   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

(4)   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 way of the Director’s Decision, the Director refused the applicant’s claim. The Director refused to accept that he would face real risk of harm upon refoulement because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]- [15]; (ii) state protection would be available to the applicant [16]- [19]; and (iii) internal relocation was also an option [20].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. The Board held an oral hearing on 22 March 2019 for his appeal. Before the Board, the applicant indicated that he wished to adopt the existing information and there was nothing new to be supplemented. The Board informed him that it had queries that required clarifications and, without clarifications from the applicant, it would be unlikely to reverse the Director’s Decision. However, the applicant chose not to answer the Board’s questions [30].

9.In this regards, the Board highlighted several material aspects of the applicant’s claim and expressed the difficulties in making any findings on these issues in relation to the applicant’s credibility. It then concluded that:

“32….The Appellant’s comments and responses to these issues would have allowed me to make findings as to his credibility. As those issues remain unresolved, I am not able to make findings in favor of the Appellant regarding the credibility of his claims to fear harm for reason of his land dispute with his uncle and therefore I do not accept his case as plausible. Particularly, as his own evidence is so inconclusive regarding his family continuing to farm the Land, but that the uncle has taken possession of the Land too.” [sic]

10.On the issues of the availabilities of state protection and internal relocation, the Board considered that the lack of clarifications from the applicant also prevented it from making any findings in favor of the applicant:

“33…As those issues too remained unsolved, on the balance of the evidence before me I am not able to make findings in favour of the Appellant whether he faces a real risk of harm from uncle or supporters of the PML(N) as the Appellant may be able to access state protection and/or it may be reasonable for the Appellant to access internal relocation” [sic]

11.As a result, the Board found that, on the credible evidence, the applicant did not face any real risk of harm if refouled. For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 3 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he enclosed the Board’s Decision without specifying any specific ground in support of his application.

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 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).

15.The Court will bear in mind that the Board’s Decision 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.It is obvious that the Board had drawn adverse inference on the applicant’s credibility for the reason that the applicant refused to answer its questions despite being warned that his decision might make it difficult for the Board to overturn the Director’s Decision. On the issue of whether the Board can draw adverse inference against the applicant, resulting in discrediting his evidence as a whole, there are a number of authorities for consideration.

18.However, he has set out his grounds in an attachment to Form 86, which I shall summarize below. He referred to the Director. I shall take it as referring to the Board.

(1)   The Decisions of the Director and the Board were unfair and unreasonable. The Board did not give him sufficient time to prepare evidence for his case;

(2)   The Director’s Decision did not take into account of the state acquiescence. He was subjected to torture by the police and those high-ups in the political circles;

(3)   the Director failed to give weight to COI, which said that police was not able to give him protection; and

(4)   The Director has not taken into account corruption and incompetency of the administration and therefore had failed to attain high standards of fairness.

19.The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration CACV 286/2011, 21 November 2012 [2013] 1 HKC 526, CA, Hon. Cheung CJHC, Stock VP and Fok JA held:

“25. High standards of fairness certainly do not entitle the torture claimant, having stated a claim, ‘to simply sit back and require the Director to disprove it’. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”. CH v Director of Immigration [2011] 3 HKLRD 101, para 47.”

20.The applicant is obligated under the Ordinance to cooperate with the Director and the Board for the assessment of his claim. See section 37ZA (1)(a).[1] As the law imposes an obligation on him to make prompt and full disclosure of all material facts in support of the claim, his refusal to do so is in contravention of the statutory provision and he must bear the consequences. It is not difficult to understand the consequence of the Board not believing his evidence if he refused to answer the questions put by the Board to him. In my view, high standards of fairness give no exemption to the applicant for the compliance of the Ordinance.

21.Those grounds above do not assist him. Grounds (1), (3) and (4) are mainly his bare allegations without any evidence in support of them. As to the Board not giving him sufficient time to prepare the evidence, the applicant has not informed this Court what evidence he considered necessary to support his case. Ground (2) fails too because the facts of his case do not have state involvement, direct or indirect.

22.I find that the applicant has no valid ground to challenge the Board’s Decision.

23.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.

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

CONCLUSION

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

Dated the 4^th day of April 2022

(K.H. LI)
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 4 April 2022 Sarfraz 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 4 April 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 13468/18/9/229/P2655 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2861/18 (Formerly RBCZ 10048/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] 37ZA.Duties of claimant

(1) It is the duty of a claimant to substantiate a torture claim, and to this end, the claimant must—

(a)provide to the Director and (on an appeal) to the Appeal Board all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any document supporting those facts;

Cites 5 cases

Cases cited in this judgment

Nupur Mst v. Director of Immigration