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

HCAL 472/2019

[2022] HKCFI 2864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 472 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 30 January 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 6 October 2016. On 18 October 2016, he surrendered to the Immigration Department. On 3 November 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 Pakistan Muslim League (Nawaz) (“PMLN”) and the father and brother of his ex-girlfriend.

5.According to the applicant, he became a supporter for the Pakistan Tahrek-e-Insaf (“PTI”) in around 2010. He was politically active and widely recognized in his locality. His ex-girlfriend Shubana also worried that her father would not be pleased as they belonged to different political groups. In 2012, having found out about their relationship, Shubana’s father was outraged and posed death threat to the applicant if he continued to see Shubana. In the end of 2012, the applicant was beaten by Shubana’s father and brother because he secretly met her. The report to the police about this incident was of no avail. In early 2013, Shubana was tortured and imprisoned by her family as she tried to persuade them to agree with their marriage. The applicant’s parents were also disturbed with threatening messages. In mid-2014, the applicant organized strikes. He was attacked by the PMLN members and also by the police during the strikes. In addition, the PMLN members lodged false reports against the applicant. Thereafter in 2015, during the elections, the applicant claimed that, while he was not injured, his peers were killed. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 13 August 2018 by the Director (the “Director’s Decision”) and paragraphs 47 to 88 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 the applicant’s claim because the level of risk of harm upon 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 [12]-[13]; (ii) state protection would be available to him [14]-[21]; and (iii) internal relocation was a viable alternative [22]-[25].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 30 November 2018, the Board conducted an oral hearing for his appeal, during which he answered the Board’s inquiries [14].

9.Having considered the evidence, the Board made the following findings. The applicant failed to provide any evidence that he was unable to relocate to other areas in Pakistan. The fact that the police needed to inquire his whereabouts showed that they did not have the ability to locate him everywhere [110]. Since the applicant had left Pakistan for more than two years, it was likely that the PMLN ceased to have any adverse interests against him [111]. The alleged injuries sustained by the applicant from Shubana’s family were not severe and, alternatively, her family had shown no real intention to harm or kill him [112]-[116]. Besides, on the applicant’s own evidence, his relationship with Shubana ended in 2011 [118]. Further, the applicant was inconsistent in relation to the attacks arising from the conflicts between PMLN and PTI, in particular, whether he was injured in the attack in 2015 [121]-[132]. The applicant’s assertion that the police would not protect him was speculative [134]-[140]. In any event, the country of origin information showed that state protection and internal relocation were both available to the applicant [145]-[181].

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 19 February 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 would like to reject and review the decision made by the Immigration Department as they disregarded his dangerous situation.

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 Decision 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 15^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