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

HCAL 2242/2018

[2022] HKCFI 2500

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2242 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 5 October 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 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 21 October 2009 and was arrested by the police on the same day.  On 24 October 2009, he raised a torture claim which was subsequently rejected on 10 January 2014.  On 15 July 2014, he lodged a non-refoulement claim.  His claim was assessed on all applicable grounds other than on the torture risk[1]. The applicant claimed that, if refouled, he would be harmed or killed by his parental uncle Walayat Khan (“WK”) due to a land dispute.

5.According to the applicant, his father and WK both inherited a piece of land from his parental grandfather in January 2009.  The applicant’s family situated in a better location and thus WK indicated that he wished to occupy the applicant’s family land.  WK was well connected with the political parties and the local leaders.  In March 2009, the applicant was attacked by WK’s friends, who were police officers, with wooden sticks.  He was also informed by his mother that those people visited his house, posing death threats to his mother.  The applicant first attempted to relocate to another village.  Later in April 2009, he returned home to find out that his house was shot by somebody.  Out of fear, he fled to Hong Kong for protection.  While he was in Hong Kong, he learnt that his family also moved away from the home village and that his father and brother were also pursued by WK as all of them needed to sign the transferal papers.  Details of the applicant’s claim are set out at paragraph 11 of the Notice of Decision dated 24 January 2017 by the Director (the “Director’s Decision”) and paragraphs 8 to 29 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 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 on the basis that there would not be any real or substantial risk of harm upon his 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 [17]-[20]; (ii) state protection would be available to him [21]; and (iii) internal relocation was also a viable alternative [22]-[28]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 29 March 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [59].

9.Having considered the evidence, the Board found that the applicant’s claim was unrealistic and implausible.  Even on the applicant’s own evidence, he acknowledged that he could safely live in another village but he simply feared the threats from WK [60].  The Board considered that the applicant’s evidence on the inherited lands was inconsistent and contradictory [63]-[66]. There was no evidence that the applicant’s father, the registered owner of the land, and his brother, the legitimate heir to the land, were also individually targeted by WK [68].  There was also no evidence as to why WK would target the applicant and his assertion that it was also based on his political affiliation was merely from hearsay information [69].  The Board further found that the alleged assault incident was not plausible [70]-[72] and that his evidence on the attackers’ threats to his mother was inherently inconsistent [73].  The Board also cast doubts on the applicant’s evidence in relation to his movements within and out of the home country [77]-[80] and on his evidence in relation to the subsequent status of his family members [81]-[83].  In any event, the Board concluded that state protection and internal relocation were both available alternatives [94]-[106].

10.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

11.The applicant has filed Form 86 dated 15 October 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant said he was not satisfied with the Board’s Decision and his life is still in danger if he returns 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, §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.Those grounds in paragraph 12 above are 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 23^rd 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