Iqbal Mudassar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1106/2019

[2022] HKCFI 1905

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1106 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 oral submissions by the Applicant 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 4 April 2018, the Director of Immigration’s Decision (“the Director’s Decision”), which has been dealt with by the Decision dated 9 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The Director’s Decision is therefore not amenable to judicial review.[1]

2.The applicant did request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him and he attended the hearing.

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 January 2016 and was arrested by police on the same day. He was referred to the Immigration Department. By way of written representation on 15 January 2016, he lodged non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the family of Jannat, who was his girlfriend Aroosa Jannat.

5.According to the applicant, he was a supporter of Pakistan Tehreek-e-Insaf (“PTI”). He was in love with Jannat in 2014. In May 2015, he proposed to Jannat’s family. They strongly rejected because of their difference in family background, social status and political beliefs. Jannat’s father, Malik met them on the street and he was furious. He demanded the applicant to leave his daughter. On the next day, he met Malik together with five or six people. They slapped and punched him for about five minutes. He sustained some bruises on his front, back, face and arms. But he did not seek medical treatment. 10 days later, he met Malik again. Malik threatened him to leave Jannat or he would kill him. In August 2015, he came across 7 unknown men on the street. Two of them were carrying pistols. They threatened him to leave the location, Kanowa or they would shoot him. He left Kanowa for Dahook, the place where he originally lived. A man came to him and told him not to return to Kanowa or Jannat’s family would kill him. However, he went back to Kanowa to meet Jannat. One night in October 2015, Malik and two relatives came to him on the street. Malik was holding a pistol, threatening to kill him if he pursued his daughter. He was scared. On his friend’s advice, he left Pakistan for China in January 2016. He was in contact with Jannat, who told him that her family was still holding the same attitude towards him. He will be in danger if he returns to Pakistan. He considers Malik is so well connected that he will be able to locate him even if he relocates in Pakistan. Police in Pakistan will not assist him as he does not have money to bribe them.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC 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 Notice of Decision dated 4 April 2018 (“the Director’s Decision”), the Director refused the applicant’s claim. The Director found that the level of risk of being harmed or killed by Jannat’s family upon his refoulement was assessed to be low because (i) the low level of ill-treatment from Jannat’s family in the past was indicative of a small future risk of harm [14]; (ii) state protection would be available to him [15-20]; and internal relocation alternative was available to him [21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 14 January 2019, the Board conducted an oral hearing for his appeal.

9.The Board had made enquiries on the facts of the applicant’s case. Having assessed the evidence [64-97], the Board came to the following conclusion:

“68. … the applicant had manufactured his claims and evidence in order to apply for non-refoulement protection and his stay in Hong Kong….”

10.In a nutshell, t1he Board did not accept the facts in support of the applicant’s claim.

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

11.The applicant has filed Form 86 dated 24 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 attached the Board’s Decision without specifying any ground.

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, §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. Before me, the applicant said he did not want to leave Hong Kong as he had married here. However, he would accept whatever result the court may reach.

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 applicant is unable to raise any 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 23^rd 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