Ahmed Bilal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 647/2019

[2022] HKCFI 2522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 647 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 20 September 2017. However, there is no such document on the file. The decision dated 12 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) should be the one subject to judicial review. The date of the decision will be rectified accordingly below.

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, the Director of Immigration (“the Director”) is the interested party and the date of the Board’s Decision for this application is 12 February 2019.

The applicant

4.The applicant is a national of Pakistan.  He entered Hong Kong illegally on 15 July 2015 and surrendered to the Immigration Department on the same date.  On 6 April 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Raja Altaf (“Raja”).

5.In short, the applicant claimed that he had witnessed the murder of four people by Raja on 11 July 2013.  Thereafter, he was under continuous death threats from both Raja and the victims’ family members, the former for disclosing the murder case, the later for not being a witness in court.  Out of fear, he fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 11 September 2017 by the Director (the “Director’s Decision”) and paragraph 25 of the Board’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 on the basis that he would not face any real or substantial risk of harm upon refoulement.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [11]; (ii) his behaviors were inconsistent with someone who genuinely feared of being harmed or killed [12]; (iii) there was no evidence of state involvement [13]; (iv) state protection would be available to him [14]-[15]; and (v) internal relocation was a viable option [16]-[17].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 7 September 2018, the Board conducted an oral hearing for his appeal.

9.Having considered all the evidence, the Board dismissed his appeal [8]. The Board found that the applicant’s claim lacked credibility.  In particular, his claim was full of inconsistencies and his accounts were implausible.  He had failed to provide detailed descriptions of the material aspect of his claim, i.e., the murder as well as the subsequent threats from both parties. It also dissatisfied with the applicant’s reason of moving to Saudi Arabia after the alleged threats [30]-[51].  Thus, the Board refused to accept his evidence.  Further, the Board found that the past events showed that the claimed enemies had no real intention to harm or kill him and that the lapse of time also indicted an unlikelihood of future risk of harm [52]-[59].  In any event, state protection and internal relocation were both available to the applicant [60]-[73];[99]-[102]. 

10.For the above 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 7 March 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 his life was still in danger and he could not go back to his country.

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 CA, §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 ground in paragraph 12 above is not valid reasons 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 24^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