Muhammad Tariq Tahir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 656/2019

[2022] HKCFI 2218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 656 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 28 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 last entered Hong Kong illegally on 16 November 2009 and was arrested by the Immigration Department on 25 November 2009.  On 29 November 2009, he lodged a torture claim, which was rejected on 19 September 2012.  The subsequent petition against the said refusal was also dismissed on 19 November 2012.  On 20 May 2013, he lodged a non-refoulement claim.  His claim was assessed on all the applicable grounds, other than the torture risk[1].

5.The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by the main supplier of his phone card business as he failed to repay the loan borrowed by his business partner Arshad.  His personal background and claim were summarized by the Director.  In short, the applicant stated that he had a phone card business with Arshad in March 2007.  In December 2007, Arshad disappeared, taking all the money from their business. Towards the end of 2008, four unknown men came to the applicant’s shop and they were the main suppliers of the phone cards.  They said that Arshad owed them money and demanded the applicant to repay on his behalf.  The applicant could not locate Arshad nor did he have money to repay the loan.  Shortly after, the main suppliers assaulted the applicant with fists.  In April 2009, the applicant was arrested by the police for owing money to certain companies.  He was charged, tried and later acquitted for insufficient evidence.  A week later, the applicant was threatened, and injured by the main suppliers.  His phone card shop was also burnt by them.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 12 of the Notice of Decision dated 10 February 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 for the level of risk of harm upon his refoulement was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [18]-[21]; (ii) state protection would be available to him [22]-[24]; and (iii) internal relocation was a viable alternative [25]-[28]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 7 December 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter.  Nevertheless, the applicant refused to answer the Board’s questions.  The warnings given by the Board were that, without the applicant’s oral evidence, the Board was (i) unable to form a positive decision in his favor; and (ii) left with serious concerns.  The applicant was also informed that, without such clarifications, his appeal would be very unlikely to succeed [9].  Again, the applicant refused to give evidence.  As a result, the Board considered his appeal on the available documents only.

9.The Board considered that the applicant’s evidence before the Director was brief and contained very little details.  His answers during interviews were incoherent [24].  In this light, the Board felt the need to elicit clarifications with the applicant.  Yet, the applicant failed to cooperate. The Board therefore considered that the applicant had not fulfilled his duty of joint endeavor as there were concerns pending clarifications [29]-[33].  For this reason, the Board rejected his 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 8 March 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 he was not satisfied with the Board’s Decision. He had problem and he could not go back to his country.

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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.The Court will bear in mind that the Board’s Decision 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.Those grounds in paragraph 11 above are not valid reasons to challenge the Board’s Decision.

16.I have noted that the applicant had refused to provide further information to the Board upon request despite the Board’s warnings above. He cannot complain that the Board did not accept his evidence.

17.The Court of Appeal in TK v Michael C Jenkins Esq  and Director of Immigration CACV 286/2011, 21 November 2012 [2013] 1 HKC, 526, Hon. Cheung CJHC, Stock VP and Fok JA held:

“25. High standards of fairness certainly do not entitle the torture claimant, having stated a claim, “to simply sit back and require the Director to disprove it”. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”. CH v Director of Immigration [2011] 3 HKLRD 101, para 47.”

18.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).[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. He had been told the consequence of the Board not believing his evidence if he refused to answer the questions put by the Board to him. In my view, high standards of fairness give no exemption to the applicant for the compliance of the Ordinance.

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 21^st 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