Khan Zahid v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 203/2019

[2022] HKCFI 993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 203 of 2019

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 present 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 8 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”).  He appeared before the Court on 7 February 2022.

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 police on the same day.  He lodged a non-refoulement claim on 10 October 2015 with a further submission made on 9 November 2015.  His claim was made on the basis that, if refouled, he would be harmed or killed by members of Pakistan Muslim League (Nawaz) (“PMLN”).  His other source of fear came from an accusation of him for killing two people.

5.According to the applicant, he was a supporter of Pakistan Tehreek-e-Insaf (“PTI”).  He helped organize the events and attended party rallies and meetings.  In 2015, there was a local election, in which he assisted in promoting PTI for more votes.  One day, he was approached by PMLN members who demanded him to join PMLN.  Upon refusal, the applicant was threatened and attacked for around 10 minutes.  The police refused to entertain his complaints.  One week later, the applicant and two of his friends were targeted by PMLN members again and, during the attack, his two friends were shot dead.  The applicant fled to other villages but he was informed that he was accused of the aforesaid murder.  Out of fear, he eventually fled to Hong Kong for protection.  Details of the applicant’s claim were set out at paragraph 7 of the Director’s Decision and paragraphs 8 to 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:

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 a Notice of Decision dated 31 August 2017 (“the Director’s Decision”), the Director refused the applicant’s claim. The Director found that the level of risk from the PMLN members upon his refoulement was assessed to be low because (i) on the applicant’s evidence, he only suffered minor injuries from the alleged attacks.  Besides, as a low ranking supporter, the applicant was unlikely to be the target of PMLN.  Further, the applicant’s dispute with some PMLN members was probably private and he could relocate to other areas without being harmed [15]-[18]; (ii) state protection would be available to him [19]-[20], and (iii) internal relocation was also an option open to him [21]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 2 October 2018, the Board conducted an oral hearing for his appeal.

9.The Board enquired the material aspects of the applicant’s claim [18]-[30].  It observed that his evidence at the hearing differed substantially with those stated in his previous statements, such as his evidence on the deaths of his two friends [33]; his evidence on the timing of attacks and on the police’s visit to his house [35].  The applicant was unable to offer any cogent explanations to these inconsistencies [36].  Thus, the Board concluded that the applicant’s evidence lacked credibility [39]-[42].  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 22 January 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant said, in gist, the immigration officer did not know the real situation and condition in Pakistan because he had never visited his country. Many asylum seekers were dead after returning to their countries. He asked to be allowed to stay in Hong Kong.

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.Those grounds above are not valid reasons to challenge the Board’s Decision. The Board can rely on the COI to understand the situation in his country.

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 8^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