Khan Hakmeen v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2285/2018

[2022] HKCFI 2557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2285 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 9 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 13 February 2016 and was arrested by the police for being an illegal immigrant on the same date.  On 17 February 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by members of the Pakistan Muslim League “N” (“PMLN”).

5.According to the applicant, he had been a supporter of PMLN for many years.  However, gradually, he noticed that the PMLN failed to honor its promise to maintain and manage his city.  The applicant and the villagers’ complaints to the local head Sheikh were futile, making him lose faith in PMLN and then join Pakistan Tehreek-e-Insaf (“PTI”) in around 2013.  One day in around 2013 or 2014, the applicant, together with some PTI members, was putting up posters for PTI when they encountered Sheikh and his group.  The two parties got into a fight during which the applicant was assaulted with bare hands. Later in 2015, the applicant was again assaulted by PMLN members during a protest against PMLN.  In light of the persistent harassments from the PMLN, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 21 September 2017 by the Director (the “Director’s Decision”) and paragraph 38 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 his 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) there was no evidence to support the assertion that Sheikh had real intention to serious harm or even kill him nor was there anything to suggest that the injuries sustained by the applicant attained the minimum level of severity [12]-[14]; (ii) state protection would be available to him [15]; and (iii) internal relocation was also a viable alternative [16].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 16 July 2018, the Board conducted an oral hearing for his appeal.

9.The Board first noted that the applicant’s behaviors as revealed in his immigration record were detrimental to his credibility [22]-[24].  On the applicant’s evidence, he claimed that, while his dispute with Sheikh was a private one, the basis of such dispute was the party.  However, the Board found no evidence to suggest the PMLN’s involvement in targeting the applicant [28]-[36].  Further, upon reviewing the past events described by the applicant, the Board found that the applicant’s accounts were full of inconsistencies [40] and that several material aspects of his claim lacked evidential support [41]. Meanwhile, in light of the country of origin information, the Board found that state protection would be available to the applicant [49]-[58].  In any event, the Board considered that internal relocation to Lahore or Islamabad was a viable option for the applicant [75]-[79].

10.For these 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 22 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 that his life would be in danger if he returned 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.The applicant has raised no valid reason 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 1^st day of September 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