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

HCAL 2220/2018

[2022] HKCFI 1171

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.2220 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 17 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”), 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 6 October 2015 and was arrested by the police on the same day.  On 11 October 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 four cousins and their associates in Pakistan Muslim League (N) (“PMLN”).

5.According to the applicant, he became a supporter of Jamaat-e-Isalmi Pakistan (“JIP”) in 2012.  In late 2013, he and his friends were assaulted by his cousins and PMLN members for their refusal to join the PMLN.  The applicant was injured and received medical treatments.  Their report to the police was of no avail.  Later in 2015, he and his friends were again intercepted by his cousins and some unknown men.  He was beaten for around ten minutes.  Out of fear, the applicant fled to Hong Kong for protection.  Details of his claim were set out at paragraph 6 of the Notice of Decision dated 1 September 2017 by the Director (the “Director’s Decision”) and paragraph 14 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 his claim.  The Director found that the alleged injuries failed to attain the level of severity [13]; that the perceived risk of harm from his cousins and PMLN members was not as imminent and substantial as claimed by the applicant [14]; that there was no indication of state involvement [15]; that state protection would be available to him [16]-[22]; and that internal relocation was also an option [23]-[27].  

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 20 July 2018 for his appeal, during which the applicant gave evidence with the assistance of an interpreter [7].

9.The Board observed that the applicant had little knowledge about the details of JIP and was also vague as to his involvement in the JIP [21]-[22]. It noticed that the applicant was unable to explain why his other family members, who were not supporter of PMLN, were not targeted by his cousins [23]-[24].  Meanwhile, the applicant failed to provide detailed descriptions as to the alleged assaults [25]-[31] and failed to provide cogent explanations to the inherent inconsistences in the evidence [32]-[33].  Further, the Board noted that the country of origin information did not support the applicant’s claim that the JIP supporters were targets of PMLN members or that the PMLN was still powerful and influential even after the general election [36]-[37]. Viewing the unsatisfactory evidence in totality, the Board refused to accept the applicant’s evidence as credible [38]-[39].  For these reasons, the Board rejected the applicant’s claim and dismissed his appeal.  

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 12 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, “One day in late 2013, I was on the way to a JI meeting with college friend. It was around noon. They were intercepted on the road me and my friend and his unknown friend they were assaulted us, we were injured and bleeding warned us to not support JI and join PMLN. They were threatened with death if we refused….”

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.From the affirmation in support of his application, the applicant seems to repeat his story. The applicant has not raised any valid ground to challenge the Board’s Decision.

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 that shows 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 judicial review.  Accordingly, I dismiss his application.

Dated the 29^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