Siddique Mohsin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 702/2019

[2022] HKCFI 3071

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 702 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 14 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 17 June 2013 and was arrested by the police for being an illegal immigrant on the same date.  On 19 June 2013, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Zanfar and the gangsters who belonged to the Pakistan Muslim League (Nawaz) (“PMLN”). 

5.According to the applicant, he became a member of the Pakistan People’s Party (“PPP”) during his second year of college.  While he did not hold any official position in the PPP, he was actively involved in promoting the party. In around January or February 2013, the PPP organized a rally near his home village.  However, the rally was disrupted by Zanfar.  Despite that he was not injured, the applicant noticed that he had been tailed by Zanfar and other PMLN members.  Thereafter, the applicant learnt that Zanfar and the gangsters were inquiring about him.  He then escaped to different villages before eventually coming to Hong Kong for protection.  Details of his claim are set out at paragraphs 5 to 43 of the Notice of Decision dated 11 January 2016 by the Director (the “Director’s First 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 the grounds of Torture risk, BOR 3 risk and Persecution risk on the basis that the level of risk of harm from Zanfar and the gangsters was assessed to be low.  In elaboration, the Director found that (i) the absence of past ill-treatments indicated an unlikelihood of future risk of harm [49]-[58]; (ii) state protection would be available to him [59]-[60]; and (iii) internal relocation was a viable alternative [61]-[65]. 

8.In the Notice of Further Decision dated 6 December 2016, the Director also found that the applicant’s right to life would not be violated and dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

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

The Board’s Decision

10.The applicant appealed the Director’s Decisions to the Board.  On 23 February 2017, the Board conducted an oral hearing for his appeal.

11.Having considered the evidence, the Board made the following findings. First, the applicant failed to provide cogent evidence which supported his assertion that Zanfar was backed up by the PMLN or was influential enough to locate the applicant everywhere [20]-[21].  Secondly, the inconsistences and omissions in his claim indicated that Zanfar had no real intention to harm or even kill the applicant and that the applicant’s claim lacked credibility [22]-[30].  Thirdly, the applicant’s past experience showed a low level of future risk from Zanfar [31].  Fourthly, state protection and internal relocation were proven to be available in accordance with the country of origin information [32]-[40]. 

12.For these 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 13 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 reiterated his story of coming to Hong Kong without setting out any ground relating to the Board’s findings.

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.There is no valid reason 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 5^th day of October 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