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

HCAL 2182/2018

[2022] HKCFI 2581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2182 of 2018

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 20 September 2018 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 application is dealt with on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Pakistan. He entered Hong Kong illegally on 11 July 2009 and was arrested by the police for illegal remaining on the same date. On 13 July 2009, he lodged a torture claim. Upon the commencement of the unified screening mechanism, his claim was taken as a non-refoulement claim. The basis of his claim was that, if refouled, he would be harmed or killed by his cousin Nadeem due to a land dispute.

5.According to the applicant, in April 2009, his mother planned to transfer the land to him and named him as the next-of-kin for the land. After his mother passed away, the applicant would become the legal owner of the land automatically. Nadeem was a gangster. He owned a piece of land next to that of the applicant but he considered the applicant’s land to be more valuable. In May 2009, Nadeem intended to obtain the registration documents of the applicant’s land forcibly and threatened to kill the applicant if they refused to cooperate. While the applicant was not home, he heard from his mother that Nadeem beat the pillows under the quilt with a mistaken belief that the applicant was sleeping there. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 11 March 2015 by the Director (the “Director’s First Decision”) and paragraphs 6 to 23 of the Board’s Decision.

The Director’s Decisions

6.The Director considered the applicant’s claim in relation to the following risks:

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  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”);

(3)  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

(4)  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 Torture risk, BOR3 risk and Persecution risk on the basis that 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 [12]; (ii) state protection would be available to him [13]-[14]; and (iv) internal relocation was also a viable option [15].

8.In the Notice of Further Decision dated 31 May 2017, the Director also concluded that his right to life would not be violated upon refoulement and thus dismissed his 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 collectively as the “Director’s Decisions”.

The Board’s Decision

10.The applicant appealed the Director’s Decisions to the Board. On 9 August 2018, the Board conducted an oral hearing for his appeal, during which he gave oral evidence [24]-[53].

11.Having considered all the evidence, the Board made the following findings. The applicant was consistent in material aspects of his claim, such as the mother’s land, the intended transferal, and Nadeem’s visit in 2009 [57]. However, he was inconsistent as to whether he was attacked by Nadeem [59]-[60] and whether he was present in the house during Nadeem’s visit [61]. He was also inconsistent as to whether he knew the things happened after he left Pakistan [62] and Nadeem’s treatment to his mother [64]. Despite the Board accepted that the applicant’s memory might fade after the lapse of time, it found that the applicant had no documentary support for his claim, such as the land registration [66]-[67]. It also concerned about the applicant’s delay in departing Pakistan, which was inconsistent with someone who genuinely feared a risk of harm [68]. As a result, the Board refused to accept that he would face a real risk of harm upon refoulement [72].

12.For the above 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 filed Form 86 dated 10 October 2018 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 disregarded 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.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.”

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

18.The reason given by the applicant is not valid reason to challenge the Board’s Decision from the applicant.

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 to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 19^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