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

HCAL 932/2019

[2022] HKCFI 1702

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 932 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 Notice of Decision issued by the Immigration Department Decision dated 19 March 2018 by the Director (the “Director’s Decision”) and the Decision dated 18 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The Director’s Decision had been dealt with by the Board’s Decision and therefore will not be dealt with here.

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him. However, he was absent without any notice to the court. His application is therefore dealt with 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 7 February 2016 and was arrested by the police on the next day.  On 10 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 boyfriend Jawad’s family and relatives because of their homosexual relationship.  He also feared that he would be harmed or killed by other Muslims. 

5.According to the applicant, he was born in a traditional Muslim family. In Pakistan, the majority were Muslims and practiced Islamic faith which prohibited homosexuality.  The applicant knew that he was homosexual since his youth.  In 2013, he and Jawad became sexual partners.  In around December 2014, their relationship was exposed to Jawad’s elder brother Muhammad Ali (“Ali”). Thereafter, he and Jawad were beaten by Ali and Ali’s friends.  Ali then informed the villagers about the applicant’s sexual orientation.  The next day, the applicant was again beaten by Ali.  Having heard that Jawad’s family members kept looking for him, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Director’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 VIIC 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 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 [11.1]; (ii) the behaviors of Jawad’s family members showed no intention to kill him [11.2]; (iii) no substantial grounds were present to believe that they could chase the applicant all over Pakistan [11.3]; (iv) his assertion that the authorities would not protect him and the other Muslims would harm him was speculative [11.4]-[11.5]; (v) his claim was based on hearsay information [11.6] and (vi) a substantial period of time had lapsed since he last encountered his alleged enemies [11.7].  Further, the Director also found that state protection and internal relocation were both viable alternatives [12]-[20].  

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 22 October 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [7].

9.At the hearing, the Board enquired into the material aspects of the applicant’s claim [40]-[55].  The Board accepted that the applicant was homosexual.  On his own evidence, prior to the exposure of his relationship with Jawad, he was able to live a normal live undisturbed as he concealed his sexuality [64].  The Board considered the country of origin information on the aspect of homosexuality [65]-[66]; [77]-[80].  It concluded that state protection would not be available to the applicant [81].  In this circumstance, the Board proceeded to consider whether internal relocation was available to the applicant.  It found that he had lived discreetly in Pakistan to hide his sexually from his family and friends to avoid their distress and embarrassment. On the evidence, the Board was satisfied that the applicant had previously adapted his lifestyle to cope with social pressure of his family, community and religion, and not because he feared persecution or harm due to his sexual orientation. Therefore, the Board found that, if the applicant relocated to a large area far from his locality, he was able to conceal his sexuality as he had previously done before.  His previous relocations to Lahore and Karachi further supported this conclusion [82]-[88].  In addition, the Board noted that the applicant was never harmed by the authorities or that he had never lived openly as a gay man.  As a result, in light of the aforesaid findings, the Board found that internal relocation was a viable option for the applicant and as such, rejected the applicant’s 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 4 April 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.The Board had considered his case carefully, having considered the country of origin information and giving sufficient reasons in support it conclusion. The reasons raised by the applicant are not valid reasons to challenge the Board’s Decision. It is not necessary to visit the applicant’s country in order to understand the situation there as the adjudicator had made reference to the country of origin information. The fact the other asylum seekers were dead after returning to their countries may be due to various reasons, not necessarily related to the applicant’s case.

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 24^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