Zaman Adil v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 692/2019

[2022] HKCFI 2753

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 692 OF 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant 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 15 March 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 18 March 2016 and was arrested by the police on the same date. On 23 March 2016, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the Pakistani Muslim League – Noon (“PMLN”) because he refused to join them.

5.According to the applicant, he had been a supporter of the Pakistan Tehreek-e-Insaf (“PTI”) since January 2013. However, his uncles, cousins and his father were all supporters of PMLN. In May 2015, after he returned from Dubai, he actively involved in promoting the PTI and often had verbal fights with PMLN members. On two occasions in January 2016, the PMLN members approached the applicant and asked him to join them. He refused. On 28 January 2016, the applicant was attacked by around ten PMLN members with wooden sticks. Out of fear, 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 13 July 2016 by the Director (the “Director’s First Decision”) and paragraph 11 of the Board’s Decision.  

The Director’s Decisions

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 First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk because 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. Further, there was no evidence suggesting that the PMLN could locate the applicant everywhere [13]-[15]; (ii) state protection would be available to him [16]-[18]; and (iii) internal relocation was a viable alternative [19]-[20].

8.On 6 September 2017, for reasons set out in the Notice of Further Decision, the Director found that the applicant’s right to life would not be violated and thus dismissed his claim on BOR2 risk (the “Director’s Second Decision”).

9.For simplicity, the Director’s First Decision and the Director’s Second Decision are referred to collectively as the “Director’s Decisions”.

The Board’s Decision

10.The applicant appealed the Director’s Decisions to the Board. On 5 February 2018, the Board conducted an oral hearing for his appeal, during which he gave evidence.

11.The Board observed that the applicant demonstrated little knowledge about the PTI, which contradicted with his claimed involvements in the PTI [15]-[21]. It also noted that the applicant provided inconsistent accounts as to the elections [22]-[25]. The Board refused to accept the applicant’s explanations of the inconsistencies. It noted that the applicant did not mention his participations in the party rallies [26] and thus found that he was not as politically involved as he claimed [27]. Further, during the hearing, the applicant showed that he was unfamiliar with the 2013 election which he claimed to be linked to his PTI involvement and several aspects of his evidence contradicted the country of origin information [28]-[34]. As to the poster and letter submitted by the applicant in support of his involvement and the PMLN’s threats, the Board found that these did not support the applicant’s claim [35]-[41]. The Board also found that the applicant was not truthful about his disagreement with his father due to different political affiliations [43]-[44]. Meanwhile, the Board considered it doubtful that the applicant was unable to provide detailed evidence on the alleged assault [47]-[52]. As a result, the Board concluded that the applicant’s claim lacked credibility.

12.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

13.The applicant has filed Form 86 dated 12 March 2019 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, the applicant said he is not satisfied with the Director’s [Board’s] Decision. His claim was not carefully considered and his life will be in danger if he returns to Pakistan.

DISCUSSION

15.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).

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

17.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.”

18.Those grounds in paragraph 14 above are only his bare assertions and they are not valid reasons to challenge the Board’s Decision.

19.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.

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

CONCLUSION

21.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 6^th 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