Imran Sarwar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 929/2019

[2022] HKCFI 1484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 929 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 22 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 in October 2008. On 19 January 2009, he was arrested by the police. He had previously lodged a torture claim which was rejected on 4 October 2013. On 16 October 2013, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his neighbor Imdad.

5.According to the applicant, his parental uncle had a land dispute with Imdad. Imdad was a special commander of the police and thus the complaint to the police filed by the applicant’s parental uncle against Imdad was of no avail. In 2006, verbal arguments and fights occurred between the applicant’s family and that of Imdad. During the fight, the applicant sustained bruises on his legs and arms. Thereafter, the applicant’s cousin was killed. The applicant was also attacked by people. He also received phone calls of threats from Imdad’s people. While the applicant left for Lahore and nothing eventful happened during his stay, he believed that leaving Pakistan was a safer option. Thus, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraphs 8 to 46 of the Notice of Decision dated 15 June 2018 by the Director (the “Director’s Decision”) and paragraphs 41 to 73 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 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”);

b.  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

c.  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 upon his refoulement was assessed to be low because (i) the alleged injuries failed to attain a minimum level of severity and there was no evidence suggesting that Imdad had real intention to harm or kill him. Meanwhile, his behaviors were inconsistent with someone who was genuinely in need of protection [54]-[66]; (ii) state protection would be available to him as there was no evidence that police refused to render protection to him and his encounters with individual police officer would not represent the state [67]-[82]; and (iii) internal relocation was a viable alternative [83]-[90].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 7 January 2019, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [37].

9.The Board explored the material aspects of the applicant’s claim in details at the hearing [74]-[114]. Notably, the Board identified three significant inconsistencies in the applicant’s claim [111]. Having considered all the evidence, the Board considered that the applicant’s claim was fabricated. In particular, the Board found that, if Imdad was as connected and influential as alleged, why would he go through the trouble of killing people to get the land [119]-[120]? It also rejected the applicant’s claim that he would be killed and silenced for being a witness of the murder of his cousin Bilal because, on his own evidence, he was not the only witness to the murder. If he was killed, his friends would be able to testify against Imdad [121]-[125]. Further, the Board noticed that the applicant was vague and contradictory about the murder and the shooting incident [126]-[128]. Meanwhile, the applicant also failed to recall clearly whether he took any action to pursue the murderer or whether Imdad had been following his family [129]-[132]. In light of the gaps, inconsistencies and improbabilities, the Board refused to accept the applicant’s evidence. In any event, internal relocation was a viable option [146]-[150].

10.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

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

12.In his affirmation in support of his application, the applicant said he was not satisfied with the Board’s Decision. His life is still in danger.

DISCUSSION

13.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).

14.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15.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.”

16.The Board has given its reasons for its Decision. The applicant has raised no valid reason to challenge the Board’s Decision.

17.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.

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

CONCLUSION

19.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 7^th day of June 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