Shazad Amir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2383/2018

[2022] HKCFI 2663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2383 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 25 October 2018, which is the Decision 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”), his application will be dealt with 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 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 21 April 2015.  On 2 May 2015, he was arrested by the police for being an illegal immigrant.  On 5 May 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Salman due to a political dispute.

5.According to the applicant, he joined the Pakistan Muslim League (Nawaz) (“PMLN”) in around 2004 or 2005.  His job was to persuade the villagers to cast votes for the PMLN during elections.  Salman belonged to the Pakistan People’s Party (“PPP”), the political rivalry of PMLN.  PPP was the winner for the 2011 election.  Nevertheless, the PPP members assaulted the PMLN members at the polling station.  During the assault, the applicant sustained bruises and abrasions.  While he sought to report to the police, he was unable to provide the names of the attackers.  Thereafter, the applicant was assaulted by some unknown men with weapons who blamed him for the police report.   After the attack, the applicant received a threatening phone call. He then escaped to another city to stay with his friend.  One day in 2013, some people carrying the wooden batons visited his friend’s house and attacked the applicant.  Out of fear, the applicant left for Hong Kong for protection.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 26 March 2018 by the Director (the “Director’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 the level of risk of harm 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 [11]-[17]; (ii) state protection would be available to him [18]-[26][1]; and (iii) internal relocation was a viable alternative [27]-[32][2].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 29 June 2018, the Board conducted an oral hearing for his appeal, during which he testified [8]; [57]-[80].

9.Having considered all the evidence, the Board made the following findings.  The Board first identified matters that it felt certain, plausible and attached some credence [95]-[113].  In particular, the Board accepted that the applicant was a supporter of PMLN; that PPP won the 2011 election, and that there was a fight between PPP and PMLN.  However, the Board cast doubt on the material aspects of his claim.  For example, the Board refused to accept that the applicant was a member of the PMLN since he did not have a membership card and could not provide any details in relation to PMLN.  He was only a supporter and voter for the PMLN.  He failed to explain why Salman would have any adverse interest in him.  Meanwhile, the applicant could not identify his attackers [115].  In addition, the Board also opined that his immigration records undermined his credibility [119]-[121].

10.In assessing the individual grounds, the Board found that there was only one fight between the PMLN and PPP members; that the applicant was not a specific target during the fight; and that there was no evidence that Salman would be interested in the applicant [138].  Further, after assessing the country of origin information, the Board found that state protection would be available to him [139]-[156].  Besides, the applicant’s alleged injuries failed to attain a minimum level of severity and the alleged injuries were not inflicted by the state actors or personal acting in the official capacities [157]-[161].  As a result, the Board rejected his claim on Torture risk.  In any event, internal relocation would be available to the applicant [192]-[197].  For the above reasons, the Board also rejected the applicant’s claim on the remaining grounds.

11.The applicant’s appeal was therefore dismissed.

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

12.The applicant has filed Form 86 dated 29 October 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant said he is not satisfied with the Board’s Decision and it is still dangerous to return to his country.

DISCUSSION

14.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).

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

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.Those grounds in paragraph 13 above are not valid reasons to challenge the Board’s Decision.

18.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.

19.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

20.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