Hussain Sajid v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1091/2019

[2022] HKCFI 1501

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1091 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 8 April 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 1 September 2015 and surrendered to the Immigration Department on 7 September 2015. On 24 February 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 uncle Javed.

5.According to the applicant, after his father passed away in 2012, the family farmland was left unclaimed. Javed threatened the applicant that the family farmland belonged to him. However, the applicant consulted the land officer and confirmed that the farmland should belong to the applicant’s elder brother. The attempt to seek help from the village chairman was of no avail. Three months later, Javed obtained a court order and sought to evict the applicant. He and some unknown men assaulted the applicant. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 19 July 2017 by the Director (the “Director’s Decision”) and paragraphs 6 to 19 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 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 [15]-[17]; (ii) state protection would be available to him [18]-[27] and (iii) internal relocation was a viable alternative [28]-[36].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 26 September 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [53].

9.The Board attached credence to certain aspects of the applicant’s claim, such as Javed’s claim over the farmland and his threats to the applicant [54]. However, the Board also noted significant inconsistencies in his claim. For example, the applicant was inconsistent in the period of stay in another city of Pakistan [58]. It was illogical that, on the applicant’s evidence, the farmland’s tenant, a well-reputed person in their village, would be bullied by Javed [59]. The applicant’s evidence was built upon hearsay information [60]. He was also contradictory in relation to Javed’s visit to his house and the claimed court orders [61]-[64]. As a result, the Board found that the applicant’s claim lacked credibility [66].

10.While the Board considered that the police in Pakistan might not offer sufficient protection if the applicant’s non-refoulement claim was established, it found that the alleged threat from Javed was localized and he could relocate to other areas of Pakistan [87]-[89].

11.For the aforesaid 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 24 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 he rejected the Board’s Decision as it had disregarded the danger and threats he faced in his country if he were deported back.

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.Those grounds above are only bare allegations. They are not valid reasons 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 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