Akhtar Muhammad Saeed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1074/2019

[2022] HKCFI 2145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1074 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 19 February 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 10 November 2007 and was arrested by the police on the same date.  On 3 December 2007, he lodged a torture claim, which was later rejected.  On 30 May 2013, he raised a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”).  His CIDTP was taken as a non-refoulement claim and assessed on all applicable grounds other than the torture risk[1].

5.The applicant based his claim on the fear that, if refouled, he would be harmed or killed by Safir, a member of the Pakistan Muslim League Q (“PMLQ”), because of a land dispute.  His claim presented before the Director could be summarized as follows.  The applicant’s father inherited a piece of land from his grandfather.  Safir intended to occupy the land in dispute.  In around 2005 or 2006, Safir filed a case in court to claim the ownership of the land with a fake title deed.  On 19 November 2006, Safir and his men engaged in a gun fight with the applicant’s family.  No one was injured during this incident. However, Safir’s son filed a complaint to the police, leading to the police’s inquiry against the applicant.  Thereafter, the harassment from Safir and his family continued.  For example, on 15 February 2007, the applicant was assaulted by Safir’s son with gun butts and wooden sticks; he also filed a false complaint against the applicant, which led to the applicant’s arrest and detention in the police station; he also threatened to kill the applicant the day after the assault; Safir and his associates visited the applicant’s house a few days later; on 13 August 2017, Safir and his associates again visited the applicant’s land and threatened to kill him.  In light of the police’s inaction and the fear of harm, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraphs 8 to 29 of the Notice of Decision dated 9 May 2017 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 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 the applicant’s claim.  In elaboration, the Director found that (i) the applicant sustained no severe pain or suffering [45]-[48]; (ii) there was no state involvement [49]-[62]; (iii) the risk of him being subject to ill-treatment if refouled was assessed to be low [63]-[71]; (iv) state protection would be available to him [72]-[75]; and (v) internal relocation was a viable alternative [76]-[84].

The Board’s Decision

8.On 22 May 2017, the applicant appealed the Director’s Decision to the Board.  On 3 July 2018, the Board conducted an oral hearing for his appeal, during which he answered the Board’s inquiries with the assistance of an interpreter [30]. 

9.Having considered the evidence, the Board made the following findings. It noted that the applicant was not the owner of the land.  While it was plausible that there was a land dispute, it considered that such dispute would not arise to a serious risk of harm to the applicant.  Taking the applicant’s evidence to the highest, it found that the applicant was only bullied and mildly injured and the alleged harm from Safir was mostly verbal threats [49]. The Board also observed that the applicant presented false evidence [50] and that his conducts and past immigration history and convictions in Hong Kong might also damage his credibility [51].  Nevertheless, even accepting the applicant’s evidence, the Board still concluded that he failed to establish his non-refoulement claim. 

10.As a result, 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 23 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 that the Board had disregarded his dangerous situation.

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 Decision 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 ground in his affirmation above is not a 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 15^th day of July 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