Case Document

100%Judiciary

HCAL 2373/2018

[2022] HKCFI 3196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2373 of 2018

BETWEEN
	Hussain Mujadad	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 24 August 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 and surrendered to the Immigration Department on 3 August 2015. On 6 April 2016, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle due to a land dispute.

5.According to the applicant, his father was killed by his three cousins on 3 June 1999 due to the land dispute. Despite the autopsy showing that his father committed suicide, the applicant believed that the whole scheme was orchestrated by the three cousins. The applicant’s mother reported his father’s murder to the police but it was of no avail. Thereafter, the applicant was threatened and also assaulted by three people who demanded him to cease the investigation of his father’s death. 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 December 2017 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 as his claimed fear of harm was unlikely to materialize. In elaboration, the Director found that (i) there was no severe pain and suffering inflicted on the applicant [11]-[20]; (ii) the evidence adduced by the applicant failed to support his non-refoulement claim [21]-[63]; (iii) state protection would be available to him [64]-[79]; and (iv) internal relocation was a viable alternative [80]-[94].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 9 July 2018, the Board conducted an oral hearing for his appeal, during which he supplemented and clarified his claim [31]-[32].

9.Having considered the evidence, the Board found that the applicant’s evidence was inherently incredible [34]. For example, there was no witness to the death of the applicant’s father [35]. The applicant did not provide any specifics of the alleged land dispute. In fact, it appeared that the cousins held a grudge because the applicant accused them of killing his father [38]. The cousins did not exhibit any real intention to cause serious harm or even kill him [39]. In addition, the country of origin information showed that state protection would be available to him [42]. In any event, internal relocation was also a viable alternative for the applicant [51]-[56].

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 29 October 2018 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 is not satisfied with the Board’s Decision and it is not safe to return to his country.

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.The Board had assessed his case and did not accept his evidence on the facts of his case. 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 18^th day of October 2022

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 18 October 2022 Hussain Mujadad Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 18 October 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9739/18/1/12/P1880 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3681/17 (Formerly RBCZ 14006/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)