Adnan Ur Rashid v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2278/2018

[2022] HKCFI 1376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2278 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.The applicant applies for leave to apply for judicial review of the Decision dated 12 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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 May 2016 and was arrested by the police on the same date.  On 10 June 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Shahid Chaudhary (“Shahid”) and the fellow supporters of the political group abbreviated as PML-N.

5.According to the applicant, he was a supporter of Pakistan Muslim League-Quaid-e-Azam (“PML-Q”).  In 2011, he changed to support Pakistan Tehreek-e-Insaf (“PTI”) and became an active member.  In 2015, the applicant successfully contested the candidate from PML-N and won the local election while PML-N secured the majority councilor seats.  After the election, Shahid started to persuade the applicant to join the PML-N and threatened to kill him if he refused to do so.  His complaint of such threats to the police was of no avail.  On 10 January 2016, the applicant and his nephew were shot by persons who he suspected to be PML-N members.  Scared that the ongoing threats from Shahid might materialize, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 8 of the Notice of Decision dated 23 January 2017 by the Director (the “Director’s Decision”) and paragraph 7 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:

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

b.     risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“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 way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that the level of risk of harm upon his 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 [16]; (ii) state protection would be available to him [17]-[21]; and (iii) internal relocation was a viable alternative [22]-[24].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 27 February 2018, the Board conducted an oral hearing for his appeal, during which he answered the Board’s inquiries with the assistance of an interpreter [24].

9.The Board explored the material aspects of the applicant’s claim with him [25]-[46].  It noticed a significant discrepancy in the applicant’s claim that, in his original claim, he claimed fear of harm from PML-N but, before the Board, he claimed that his source of fear was from PML-Q [51].  Further, the documents submitted by the applicant had no support for his claim [53].  His free exit and entry of Pakistan showed that the authorities had no interest in him [54].  For these reasons, the Board rejected his claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 19 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant said he was not satisfied with the Board’s Decision and his life would be in danger if he returned to Pakistan.

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 Decisions 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.The applicant has raised no valid reason 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.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

18.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 13^th day of May 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