Abdullah Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition

HCAL 2050/2018

[2022] HKCFI 573

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2050 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 dated 20 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 15 November 2013 and was arrested on the same date.  On 17 November 2013, he lodged a non-refoulement claim.  However, he failed to return his non-refoulement claim form within the time limit and his claim was deemed withdrawn on 2 December 2015.  On 9 December 2015, he requested to reopen his non-refoulement claim, which was granted by the Immigration Department.  The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by some smugglers. 

5.According to the applicant, his brother had successfully solved smuggling cases and arrested some smugglers.  In 2009, his brother was murdered but there was no breakthrough in the investigation and no murderer was arrested.  Thereafter, his father filed a court case against the police for their inaction and delay in the investigation.  From 2010 to mid-2013, the applicant and his father were threatened and attacked by some unknown men who he believed to be the smugglers or the murderers as they wanted the applicant to withdraw the court case against the police so that the police would not be pressurized to investigate the matters.  The assaults led to the injuries of the applicant and his father.  Out of fear, he fled to Hong Kong for protection.  While he was stopped by the immigration in Pakistan for the first time, he successfully left at the second attempt.  Details of his claim were set out at paragraph 8 of the Director’s Decision and paragraphs 6 to 15 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.   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 17 January 2017 (“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 [15]-[17]; that reasonable state protection was available to him [18]-[25] and that internal relocation was an option open to him [26]-[30]. 

The Board’s Decision

8.The applicant appealed against the Director’s Decision to the Board.  An oral hearing for the applicant’s appeal was held on 22 June 2018, during which he answered the Board’s inquires with the assistance of an interpreter.    

9.The Board considered the applicant’s claim and his evidence.  It observed that the applicant’s manner in giving oral testimony was vague and incoherent.  The oral evidence was inconsistent with the previous written statements and the applicant was unable to clarify these inconsistencies [29].  The Board noticed that the centerpiece of the applicant’s claim was the murder of his brother. However, the applicant was mistaken about the name of his brother [31]. Further, the Board noted that the court documents submitted by the applicant did not support the part of his claim on lodging a court case against the police [33]-[36].  When seeking clarifications about the details of the court case, the Board found that the applicant’s evidence was incoherent and did not make sense at all [39]-[43].  Thus, the Board concluded that he was not a credible witness.  For this reason, the Board rejected his claim on all applicable grounds and dismissed his appeal. 

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 27 September 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he set out his grounds as below:

(1)   the Board had not maintained the high standards of fairness;

(2)   the Board had failed to apply procedural fairness;

(3)   the Board did not take into consideration that the applicant was not legally represented and he did not have sufficient legal knowledge;

(4)   the adjudicator did not advise him that he could complain.

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.Those grounds above are not valid in support of his application. Grounds (1) and (2) are his opinions. Ground (3) is irrelevant as the adjudicator was aware he was not legally represented and that he is not a lawyer himself. Ground (4) is simply irrelevant as the adjudicator has no duty to advise him he could complain.

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 4^th day of April 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