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

HCAL 1122/2019

[2022] HKCFI 2395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1122 of 2019

BETWEEN

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 15 April 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 22 July 2007 and was arrested by the Hong Kong police on 22 March 2008 for illegal remaining. On 16 October 2008, he lodged a torture claim. Upon the commencement of the unified screening mechanism, his torture claim was taken as a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor Muhammad Mushtaq (“Mushtaq”).

5.According to the applicant, in June 2005, he borrowed money from Mushtaq to support his father’s business. He was able to repay the interest for the first six months but ceased to repay afterwards. By the end of 2006, the business suffered significant loss and the applicant began to default all the payments. Since then, Mushtaq started to threaten the applicant and assaulted him once in the end of 2006. In around February or March 2007, Mushtaq also set fire on the applicant’s shop. As a result, the applicant escaped to Hong Kong. Nevertheless, in August 2012, he encountered Mushtaq together with some other people on the street in Hong Kong. They had fought each other on the street. The applicant called the police and they escaped before the police arrived. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 January 2015 by the Director (the “Director’s First Decision”) and paragraph 18 of the Board’s Decision.

The Director’s Decisions

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 First Decision, the Director dismissed the applicant’s claim on the grounds of BOR3 risk, Torture risk and Persecution risk. In elaboration, the Director found that (i) the applicant’s fear was from a private monetary dispute with no state involvement [11];[14]; (ii) his alleged ill-treatments failed to attain the minimum level of severity. Meanwhile, after his encounter with Mushtaq in Hong Kong, his family had not met Mushtaq since then [12]; (iii) there was no evidence that his shop was burnt down by Mushtaq [13]; (iv) the applicant did not report the incidents to the police [15]; (v) his behavior of using the money to flee instead of repaying the loan was inconsistent with someone who genuinely feared the consequence of the default payment [16]; (vi) state protection would be available to him [17]-[18]; and (vii) internal relocation was a viable alternative [19]-[22].

8.For reasons set out in the Notice of Further Decision dated 17 May 2017, the Director also dismissed the applicant’s claim on BOR 2 risk (the “Director’s Second Decision”).

9.For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to as the “Director’s Decisions”.

The Board’s Decision

10.The applicant appealed the Director’s Decisions to the Board. The Board scheduled the oral hearing for his appeal to be on 13 November 2018, which was later adjourned to 18 January 2019 to facilitate the attendance of the interpreter [30].

11.The Board sought to clarify several material aspects of the applicant’s claim [31]-[70]. Having considered his evidence, the Board made the following findings. The Board found that the applicant failed to provide the loan documents, such as one indicating the terms or the relevant repayment slips, nor did he provide any evidence of his shop or his family business [76]-[79]; that it was illogical for the applicant to claim that Mushtaq went to his house but did not tell his family members the sum owed by the applicant [80]; that it was unreasonable that the applicant’s father did not sell the property to settle the loan which was meant for the family business [81]; that there were significant inconsistencies in the applicant’s evidence [85]-[91]; that the applicant failed to provide any medical evidence for his injuries [89]; and that he provided no evidence to his report to the Hong Kong police about the alleged fight with Mushtaq in Hong Kong [95]. In light of these inconsistencies and the absence of objective evidence, the Board concluded that the applicant’s claim lacked credibility.

12.For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

13.The applicant has filed Form 86 dated 26 April 2019 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, the applicant said the Board did not consider his dangerous situation.

DISCUSSION

15.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).

16.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

17.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.”

18.The ground above are not valid reasons to challenge the Board’s Decision.

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 15^th day of August 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