Syed Sajjad Ahmed Alias Sajjad Gilani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2016/2018

[2022] HKCFI 3242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2016 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 applied for leave to apply for judicial review of the Director’s First Decision, the Director’s Second Decision as described at paragraph 10 below and the Decision dated 13 September 2018 of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the Board’s Decision”). The applicant’s application in respect of the Director’s First Decision and the Director’s Second Decision must be dismissed and it is not amenable to judicial review as they had been considered and dismissed by the Board’s Decision.[1]

2.The applicant did not request oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application is dealt with 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 relief sought is the Board’s Decision.

The applicant

4.The applicant is a national of Pakistan. He attempted to enter Hong Kong on 19 December 2013 but was refused permission to land. On the same date, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the Pakistani Muslim League (N) (“PMLN”).

5.The applicant had previously made an application for leave to apply for judicial review against the Security Bureau’s decision to deport him. His leave application was refused[2] and the subsequent applications for leave to appeal to the Court of Appeal[3] and the Court of Final Appeal[4] were also dismissed.

6.According to the applicant, his non-refoulement claim was based on the fear that the PMLN members would attack him because he refused to join the PMLN. The applicant became a supporter of the Pakistan People Party (“PPP”) in 2005. In September 2013, he had heated disputes with the prominent members of the PMLN. One day, he was attacked by the PMLN members for putting up posters for the PPP during an election campaign. Thereafter, he sought helps from the police and the PPP leader in his locality. Eventually, at the advice of his wife, he fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 2 February 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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 First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk as there was no substantial ground to believe that he would face any real risk of harm upon refoulement. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14]; (ii) state protection would be available to him [15]; [17]-[18]; and (iii) internal relocation was a viable alternative [16].

9.For reasons set out in the Notice of Further Decision dated 11 July 2017, the Director also found that the applicant’s right to life would not be violated and thus dismissed his claim on BOR2 risk (the “Director’s Second Decision”).

10.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

11.The applicant appealed the Director’s Decisions to the Board. On 12 July 2018, the Board conducted an oral hearing for his appeal.

12.Having considered the evidence, the Board rejected the applicant’s claim. The Board refused to accept that the applicant was actively involved in the PPP [22]. It also rejected the applicant’s alleged assault by the PMLN members [25]. Further, even if the applicant encountered assaults from the PMLN members, the injuries sustained were not serious [26]. In this light, the Board found that the applicant’s claim was not credible [28]-[31].

13.In assessing the individual grounds, the Board found that the injuries failed to attain a minimum level of severity [35]; that the applicant was not personally targeted by the PMLN [39]; that state protection would be available to him [40]-[49]; and that there was no evidence of state involvement [60]. In any event, internal relocation was a viable option for the applicant [71]-[76].

14.On these premises, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review

15.The applicant filed Form 86 on 24 September 2018 for leave to apply for judicial review of the Board’s Decision.

16.In the applicant’s affirmation in support of his application, the applicant has raised 2 grounds. Firstly, he was not given sufficient time to prepare his case for his appeal before the Board as the hearing bundle was given to him shortly before the hearing and he is not good at English. Secondly, the Board had not taken into account the fact that he has stayed in Hong Kong for 18 years and son was born in Hong Kong. He should have the right of a family life in Hong Kong.

DISCUSSION

17.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).

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

19.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.”

20.The Board had assessed his case and did not accept his evidence on the facts of his case.

21.As to his first ground, there is no evidence to show that he had informed the Board that he was not prepared for the hearing. On the contrary, the Board had asked him questions and he had given answered to the questions. The Board then came to the conclusion as summarized at paragraph 12 above. As to his second ground, the Court of Final Appeal in Comilang, Milagros Tecson & Others v Director of Immigration [2019] HKCFA 10, 4 April 2019 held:

“90. … The Director is not duty bound to take into account the various rights relied upon when exercising his discretion to refuse permission to stay to the appellant mothers since such rights are disengaged by section 11. His exercise of discretion is amenable to judicial review grounds on the traditional bases available to affected parties.”

22.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.

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

CONCLUSION

24.I refuse to grant leave to the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 20^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