Butt Waqar Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1080/2019

[2022] HKCFI 3139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1080 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 9 April 2018 of the Director of Immigration (“the Director’s Decision”) and the Decision dated 13 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Since the Director’s Decision has been dealt with by the Board’s Decision, it is not amenable to judicial review.[1] It is dismissed forthwith.

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 8 November 2015.  On 23 November 2015, he surrendered to the Immigration Department.  On 30 December 2015, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the supporters of Pakistan Muslim League (Nawaz) (“PMLN”) as he supported the opposition group Pakistan Muslim League (Quaid e Azam Group) (“PMLQ”).

5.According to the applicant, he became a supporter of PMLQ in around 2010 or 2011.  Since then, he had been targeted by the PMLN members as he was a regular attendee to the party meetings.  In 2011, when he and his friends participated in a party meeting, he was assaulted by the PMLN members. Thereafter, on two occasions in 2012 and 2014 respectively, he was abducted by PMLN members.  In the 2012 abduction, he only sustained minor injuries whilst, in the kidnap incident in 2014, he was detained for 2 or 3 days and, during which, he was ill-treated by the PMLN members.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 9 April 2018 by the Director (the “Director’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.  In elaboration, the Director found that (i) the applicant’s claim lacked credibility [16]-[22]; (ii) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [24]-[25]; (iii) state protection would be available to him [26]-[36]; and (iv) internal relocation was a viable alternative [37]-[42].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 20 November 2018, the Board conducted an oral hearing for his appeal, during which he gave evidence with the assistance of an interpreter [30].

9.Having considered the applicant’s evidence, the Board identified several significant inconsistencies in his claim [99].  In particular, the Board noted that the applicant was inconsistent about the number of incidents he encountered with the PMLN members; that he provided different versions as to whether he was hospitalized after the attack; that he changed his version of event as to whether the PMLN members killed the participants in the PMLQ party gathering and that he contradicted himself as to whether he escaped or was released from the kidnaps.  The Board further noted that it was illogical for PMLN to target him since he was only a supporter; that the PMLN did not pursue further actions when the applicant did not stop supporting PMLQ; and that he did not possess any political knowledge [100].  On these premises, the Board cast great doubt on the applicant’s credibility.

10.As a result, the Board found that (i) the applicant knew little about politics; (ii) his evidence contradicted with the country of origin information (“COI”); and (iii) he was unable to resolve the aforesaid inconsistencies. Thus, the Board found that the applicant’s claimed fear of harm from the PMLN members was unsubstantiated [102]-[130].

11.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

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

13.In his affirmation in support of his application, the applicant has raised the grounds below.

(1)  The Board’s Decision was reached unfairly because the Decision was written in English, which the applicant does not understand; there was no translation service for him and the Decision was not interpreted to him too. Therefore, he was unable to prepare his case properly.

(2)  The adjudicator was biased and he made his determination based on may assumptions without allowing him an opportunity to explain himself or to elaborate himself. Yet, the adjudicator challenged his credibility. The adjudicator had not taken into consideration that his written representations were prepared by his friends as he was not provided with legal or language assistance. Any inconsistency should therefore be not assessed negatively. As such, his case should be re-assessed.

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 Decision 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.As to the grounds in paragraph 13 above, the fact that the applicant complains that the Board’s Decision was reached unfairly is his comment and opinion as the Court takes into consideration the authorities below.

(1)  The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”

(2)  The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

18.His allegation that the Board was biased without allowing him to explain or elaborate the facts is only general assertion. He has not set out the specifics. The Court of Appeal in Salim Ahmed alias Md Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].

19.Those grounds in paragraph 13 fail.

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