Usman Muhammad v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2466/2018

[2022] HKCFI 3197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2466 of 2018

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 18 October 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, the Director of Immigration (“the Director”) is the interested party and the date of the Board’s Decision should be 18 October 2018 instead of 18 October 2017.

The applicant

4.The applicant is a national of Pakistan. He entered Hong Kong illegally on 20 February 2016 and was arrested by the police on the same date. On 22 February 2016, he lodged a non-refoulement claim. On 1 September 2016, he withdrew his non-refoulement claim. Nevertheless, by way of a written signification received by the Immigration Department on 11 November 2016, he again sought non-refoulement protection. On 16 November 2016, the Immigration Department acceded to his request. His claim was made on the basis that, if refouled, he would be harmed or killed by Haji Ali Bahadar (“Haji”), a member of the Pakistan Muslim League (Nawaz) (“PMLN”) as he supported the Pakistan Tehreek-e-Insaf (“PTI”) and refused to join the PMLN.

5.According to the applicant, he joined the PTI in early 2013 and was actively involved in the general election between the PTI and the PMLN that year. The applicant was responsible for soliciting the votes for the PTI. He successfully gathered around 500 to 600 votes, which made the PTI the third best performing party in the election. While the PTI lost the election to the PMLN, Haji noticed the applicant’s outstanding performance and asked him to join the PMLN. The applicant refused outright. In around mid-July 2013, the applicant was attacked by three people allegedly from the PMLN holding wooden sticks. He was injured and sent to the hospital. His subsequent report to the police was of no avail as the police would only assist the ruling party. His parents then advised him to go abroad. The applicant went to Malaysia but returned to Pakistan in November 2015.

6.The day after his return, the applicant was approached by Haji’s employees. They asked him to join the PMLN again for the 2015 election. Yet, the applicant assisted the PTI instead. While the PTI won the election, the party was not allocated as much resource as the PMLN since the government officials were PMLN members. A week later, the PMLN threatened the applicant and blamed him for the PMLN’s loss in the election. Out of fear, the applicant escaped to other villages before eventually coming to Hong Kong for protection. The applicant explained that the reason for withdrawing his previous non-refoulement claim was that his parents told him the PMLN agreed to spare him. But one month later, his father told him that Haji still threatened to kill him. Details of his claim are set out at paragraph 8 of the Notice of Decision dated 27 February 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) there was no evidence showing that the PMLN members would materialize the death threats [16]; (ii) the applicant’s own behaviors contradicted with those of someone who feared a risk of harm [17]; (iii) it was a private dispute with Haji without state involvement [18]-[19]; (iv) state protection would be available to him [20]-[27]; and (v) internal relocation was a viable alternative [28]-[33].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 31 August 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [5].

10.The Board considered the country of origin information (“COI”). It found that the attacks against the PTI members were rare. Therefore, the applicant’s claim that he would be harmed or killed by the PMLN due to his political affiliation with PTI was doubtful [38]-[41]. Meanwhile, after the election at the time of the hearing before the Board, the PTI won the national election and formed a government in the applicant’s province [42]-[44]. In these premises, the applicant’s alleged risk of harm was assessed to be low [45]. In addition, the COI showed that state protection would be available to the applicant [46]-[48]. Internal relocation was also a viable option for him [50]-[53].

11.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

12.The applicant has filed Form 86 dated 5 November 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant enclosed 39 pages of a jumble of legal authorities, legal principles and legislations, most of which are not relevant to his case. I shall summarize his grounds below.

(1)  No reasonable basis for rejecting his claim and credibility.

(2)  Failing to consider the extended form of state acquiescence.

(3)  Failing to consider the country of origin information reports in assessing risk.

(4)  Irregularity: the decision maker being different person than the immigration officer; failing to consider relevant and not consider irrelevant materials; failing to consider a consistent system of human right violations; failing to consider state protection; and placing weight on irrelevant or inaccurate or incorrect matters.

(5)  Procedural impropriety: failing to make investigation into the country of origin information on Pakistan; applying incorrect standard of proof; failing to call for psychological and/or psychiatric report for evaluation.

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.The grounds in support of his application in paragraph 13 above do not assist him. Grounds (1), (2) and (3) are bare allegations without any evidence or specific. As to ground (4), the immigration officer is the primary fact finder whereas the adjudicator of the Board dealt with his appeal. The others are also his opinions without evidence in support. Ground (5) consists of unfounded allegations as the Board had referred to the COI. There was no complaint on the applicant’s psychology or psychiatry before the Board. To say that the Board applied the incorrect standard of proof is, again, his own opinion without any evidence.

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 18^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