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

HCAL 1077/2019

[2022] HKCFI 2649

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1077 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 19 January 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 16 December 2013 and was arrested by the police for illegal remaining on 18 December 2013.  On 19 December 2013 and 23 December 2013 respectively, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the Taliban members because he refused to let them into the Government College of Management Science to conduct a suicide attack.

5.According to the applicant, he worked as a gardener in the said college.  One day in November 2013, he was approached by two Taliban members while he was at work.  They asked him to assist in operating some suicide attacks and offered him a better pay.  The applicant refused.  A few days later, he was attacked by the Taliban members with the gun butts and sustained injuries for his disobedience.  Feared that the Taliban might cause more troubles, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 17 June 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 Torture risk, BOR 3 risk and Persecution risk.  In elaboration, the Director found that (i) taking into account the previous incidents, the level of risk of harm was assessed to be low [13]; (ii) the threats, if any, were localized [14]; (iii) state protection would be available to him [15]-[17]; and (iv) internal relocation was a viable alternative [18]-[25].

8.In the Notice of Further Decision dated 25 October 2017, the Director also found that the applicant’s right to life would not be violated and thus rejected his claim on BOR 2 risk (the “Director’s Second Decision”).

9.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 20 November 2017, the Board conducted an oral hearing for his appeal, during which he answered the inquiries to clarify his claim [14].

11.Having considered the evidence, the Board made the observations that the applicant was vague about his job as a gardener in the college [15]-[18], and that he was unable to describe when asked about the details of the gardens and the college [19]-[33].  Thus, the Board cast doubt on his role as a gardener in the college [34].  Meanwhile, the applicant’s evidence was also vague about the details of the Taliban [35]-[37].  As to his injuries, the Board accepted that the applicant suffered injuries on his abdomen and back.  However, it rejected to accept the cause of the injuries as claimed by the applicant [38]-[40].  As a result, the Board refused to accept that the applicant was a gardener of the college and that he was attacked by the Taliban [43].  It further found that the applicant was of no adverse interests to the Taliban or other militant groups in the Pakistan [43].

12.Despite the country of origin information supported the applicant’s version on the Taliban [44]-[47], the Board refused to accept that the applicant was a target of the Taliban or the militant groups [48]-[50].  Thus, the Board rejected the applicant’s claimed fear of harm from the Taliban [51].

13.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

14.The applicant has filed Form 86 dated 23 April 2019 for leave to apply for judicial review of the Board’s Decision.

15.In his affirmation in support of his application, the applicant said he is not satisfied with the Board’s Decision as he was tortured in his country, his life is in danger and the tortured spots are still on his body.

DISCUSSION

16.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).

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

18.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.”

19.Those grounds in paragraph 15 above have been rejected by the Board and are not valid reasons to challenge the Board’s Decision.

20.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.

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

CONCLUSION

22.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 11^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