Adil Khawaja v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 924/2019

[2022] HKCFI 1432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 924 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 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 15 March 2019 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 30 April 2016.  On 4 May 2016, he surrendered to the Immigration Department.  On 15 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 his cousin Asad.

5.According to the applicant, around 7 years ago, Asad forged a power of attorney, transferring the family land to himself.  The applicant’s father thus filed a complaint against Asad in the police station.  In around 2010, Asad and four men attacked the applicant and his father with knives and wooden sticks, asking them to withdraw the complaint.  Two months later, the applicant’s father was again threatened by Asad and later got killed.  His family then moved to another city but the applicant still received phone calls of death threats.  Out of fear, he fled to Hong Kong for protection.  Details of the applicant’s claim are set out at paragraph 6 of the Notice of Decision dated 23 February 2018 by the Director (the “Director’s Decision”) and paragraph 23 of the Board’s Decision 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 (“HKBOR”) (“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 his claim. The Director found that the level of risk of harm was assessed to be low because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [11.1]-[11.6]; (ii) state protection would be available to him [12]-[16]; and (iii) internal relocation was a viable alternative [17]-[19]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 10 January 2019, the Board held an oral hearing for his appeal.

9.The Board noticed that the applicant did not submit any documentary proof, such as death certificate of his father, medical certificates of his injuries and the first information report about the complaint to the police [28].  It observed that the applicant was evasive in answering the questions in relation to certain material aspects of his claim [32].  He also failed to provide cogent explanations to the inconsistencies in his evidence and a large amount of the evidence were based on hearsay information [35]-[36].  In these premises, the Board refused to accept the applicant’s evidence [39]. 

10.Further, the country of origin information did not support the applicant’s assertion of state involvement [43]-[48] and internal relocation was not an undue hardship for the applicant [64].

11.For the above reasons, the Board rejected his claim and dismissed his appeal.

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

12.The applicant has filed Form 86 dated 4 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant said his life is still dangerous in his home country.

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 Decisions 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.The ground above is not valid reason to challenge the Board’s Decision.

18.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.

19.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

20.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 30^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