Rashid Waleed v. Torture Claims Appeal Board/ Non Refoulement Claims Petition Office

HCAL 697/2019

[2022] HKCFI 2848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 697 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 4 March 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 14 January 2016 and was arrested by the police on the same date. On 17 January 2016, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Shehzad because of a land dispute.

5.According to the applicant, Shehzad was powerful and connected with the political group abbreviated as PML(N). Since 2012, Shehzad had occupied the applicant’s family farmland by force. He also approached the applicant and demanded him to sell him the land at a cheaper price. In 2014, Shehzad, together with four or five followers, visited the applicant and attacked the applicant and his elder brother with wooden sticks. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 22 January 2018 by the Director (the “Director’s Decision”) and paragraphs 5 to 16 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 on the basis that he would not face any real or substantial risk of harm upon refoulement. In the Director’s Decision, the Director identified several aspects of the applicant’s claim in the non-refoulement claim form which was clarified during the screening interview [1.26]-[1.34]. The Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) Shehzad and the followers had no real intention to harm or kill the applicant and, even if he did, the risk was localized [13]-[17]; (iii) the Pakistani government had no adverse interest in the applicant [18]; (iv) state protection would be available to the applicant [19]-[24]; and (v) internal relocation was a viable alternative [25]-[28]. In addition, the Director further considered that the material aspects of applicant’s claim, as evident in the clarifications during the screening interview, were inconsistent with his evidence before the immigration officer [30]-[35].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 7 November 2018, the Board conducted an oral hearing for his appeal, during which he gave oral evidence with the assistance of an interpreter [18].

9.During the hearing, the Board sought clarifications of the applicant’s claim [17]-[40]. Having considered all the evidence, the Board found that the applicant gave inconsistent evidence on how he and his brother came to the adverse attention of Shehzad [46]-[47]; that he gave different answers to how many times he was assaulted [48]; and that his assertion that he and his brother were located by Shehzad even after relocation was not convincing [51]. However, the Board considered the applicant’s core claim, i.e., the land dispute with Shehzad, to be consistent and formed a view that it could not dismiss the applicant’s claim purely on the aforesaid inconsistencies [55].

10.Nevertheless, the Board found that the dispute with Shehzad was private matter without state involvement [68], that reasonable state protection was available to him [69], that, despite there existed a possibility of him being mistreated by Shehzad, the state protection negated such risk [78]-[79], and that internal relocation was viable [80]-[82].

11.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

12.The applicant has filed Form 86 dated 13 March 2019 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 was dissatisfied with the Board’s Decision.

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 Decisions 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.The reason raised in paragraph 13 above is only his opinion and is not valid reason 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 26^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