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

HCAL 473/2019

[2022] HKCFI 1971

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 473 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 1 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). He also applied for leave for judicial review of the Director’s Decision dated 6 July 2018 (“the Director’s Decision”). Since the Director’s Decision had been dealt with by the Board’s Decision, the Director’s Decision is not amenable to judicial review and is dismissed.[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 29 January 2016 and surrendered to the Immigration Department on 1 February 2016. On 29 June 2016[2], he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the members of Pakistan Muslim League (N) (“PMLN”), especially Haris and Asif, because he refused to join the PMLN and continued to promote Pakistan Tahreek-e-Insaf (“PTI”).

5.According to the applicant, he became a supporter of PTI in 2012. At that time, the PMLN was the ruling party. In the end of 2012, while he was persuading the villagers to vote for PTI, he encountered Haris, Asif and other PMLN members. They attacked the applicant after an unsuccessful persuasion for him to join the PMLN. His report to the police was of no avail. Despite relocating to another village, the applicant’s family informed him that the PMLN members were still looking for him. He then escaped to Dubai. On 21 August 2015, he returned to Pakistan but found out that he was still a target. Out of fear, he fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 6 July 2018 by the Director (the “Director’s Decision”).

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 the applicant’s claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14]; (ii) his conducts were inconsistent with someone who feared imminent dangers [15]; (iii) there was no state involvement [16]; (iv) state protection would be available to him [17]-[20]; and (v) internal relocation was a viable alternative [21]-[23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 16 November 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [1]. It is pertinent to note that the applicant chose not to answer the questions from the Board [39].

9.Having considered the applicant’s evidence, the Board found that his claim lacked credibility [33]. In particular, the Board noted that the applicant did not claim to hold any posts in the PTI; he did not produce any medical evidence for his alleged injuries nor did he explain why these documents could not be obtained and he did not have any documentary evidence for his police report [34]. It further considered that the applicant’s assertion on the PMLN members’ continuous search for him was speculative [35]. It also cast doubt on the applicant’s motive to go to Dubai [36]. In addition, the Board was not persuaded that the applicant was still an interest to the PMLN since he no longer promoted the PTI [37] and that the PMLN could locate him everywhere [38].

10.For these reasons, the Board rejected his 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 19 February 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant set out a list of reasons summarized below. He referred to the deficiencies of the Director in his assessment of the case. Since the Board had affirmed the Director’s Decision, I shall consider his comments on the Director’s Decision as the comments on the Board’s Decision as well. I shall simply refer his opinions to the Board’s Decision.

(1)  It is wrong and unreasonable for the Board not to take into account that his right to life should be protected from extra-judicial killing such as the risk that he would face if refouled.

(2)  He was tortured at the Behest and the state law enforcement agencies. It was unreasonable for the Board not to consider state acquiescence.

(3)  Although the Board had considered the adverse comments against state protection, it did not give weight to such factor in favour of his application, which is unfair to him.

(4)  It is Wednesbury unreasonable for the Board not to consider the corruption and incompetence of the administration of his country, which is still a very serious problem.

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.

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 had refused to answer the Board’s question, as a result of which the Board had doubted his creditability. At paragraph 39 of the Board’s Decision, the Board stated:

“The Appellant has chosen not to answer questions from the Board and give support to his claims particularly as to any assault. As a result, the questions that arose from his claims remain unanswered. He has given no cogent reasons why some 5 years after the alleged one incident in which he claimed to have been harmed he would still be at risk of harm from the PML(N) members with whom he has had no contact himself since the alleged assault upon him. As stated the Appellant was involved with politics at a very low level and the alleged sustained interest of the PML(N) in him after such a long period, in the absence of cogent reasons for it from him is not credible. As was pointed out in Chahal v UK [1996] EHRR 413@86 in respect of the assessment of risk “the material point in time must be that of the Court’s consideration of the case”. The Appellant has offered no reason why even if his assertion as to the assault upon him are correct it would not be reasonable for him to relocate from his home village as he did some years ago. On the face of it and in the absence of cogent reasons from the Appellant there are no such reasons.”

17.The above reasons for the Board to cast doubt on the applicant’s evidence seem to be fair and reasonable to this Court. Granted that the Board had not warned him of the various factual issues on which his evidence was necessary for the Board’s assessment of his case, on a fair assessment of the situations involved and the legal obligation of the applicant to answer the Board’s question under the Ordinance, I consider that the Court should apply the common-sense approach to determine whether the Board was reasonable to have doubt on the applicant’s credibility. I take the following issues into my consideration:

(1)  The applicant is obligated under the Ordinance to cooperate with the Director and the Board for the assessment of his claim, section 37ZA (1)(a).[3]

(2)  As the law imposes an obligation on him to make prompt and full disclosure of all material facts in support of the claim, his refusal to do so is in contravention of the statutory provision and he must bear the consequences. In my view, high standards of fairness give no exemption to the applicant for the compliance of the Ordinance.

(3)  It is not difficult for the applicant to appreciate the possible consequences of his refusal to answer the Board’s questions.

18.Those grounds in paragraph 12 above are not valid reasons to challenge the Board’s Decision. The applicant had set out his facts in his statement for the immigration officer and he was legally represented at the screening interview. The Director had considered his case and found that the state was not involved in the incidents. His assertions are only bare assertions without any evidence in support. It lies ill in his mouth to complain that the Board did not take a favourable view of the country of origin information in his case whereas he refused to cooperate with it by refusing to answer its questions.

19.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.

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

CONCLUSION

21.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 29^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