Shah Abdullah v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 689/2019

[2022] HKCFI 2709

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 689 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 27 February 2019 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 25 October 2015.  On 2 November 2015, he surrendered to the Immigration Department.  On 26 January 2017, 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 Nawaz (“PML(N)”).

5.According to the applicant, he was an active supporter of Pakistan Tehreek e-Insaf (“PTI”) and was responsible for organizing electoral rallies, launching campaigns and arranging protests in his village.  PTI and PML(N) were political rivalries and their members had been involved in multiple confrontations.  In May 2013, the applicant led a protest against the unfair general election, during which some PML(N) members were shot to death.  The applicant was blame for the deaths.  Thus, the police and the PML(N) members were looking for him.  The applicant escaped to Lahore where he was found and attacked by the PML(N) members.  He then fled to Kemari but in May or June 2015 he was located by some unknown men with wooden sticks.  Though he escaped from the attack, out of fear, he decided to come to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 24 May 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 as 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 [11]-[13]; (ii) state protection would be available to him [14]-[15]; and (iii) internal relocation was a viable alternative [16]-[17].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 15 November 2018, the Board conducted an oral hearing for his appeal, during which he gave evidence [25]-[64].

9.Having considered the evidence, the Board refused to accept that the applicant was a witness of truth [69].  In particular, the Board highlighted that (i) the applicant was inconsistent as to his role in the PTI [70]; (ii) he was also inconsistent as to whether he organized the general election in question [71]; (iii) he contradicted himself as to when he joined the PTI [72]; (iv) he provided inconsistent reasons of the protest [73]; (v) his evidence on whether there were deaths in the protest was doubtful [74]-[75]; (vi) in addition, he gave inconsistent evidence on whether he was blamed by the alleged death, whether he was attacked in Lahore, whether he was hospitalized, whether he reported the attack and whether he was attacked in Kemari [76]-[84]; and (vii) he also failed to produce support for his membership in the PTI [85]-[87].

10.For the aforesaid 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 12 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 he rejects the Board’s Decision.

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 ground in paragraph 12 above is not 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 2^nd 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