Raza Tahir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2384/2018 on BabelCite. This High Court CFI judgment was delivered on 25 October 2022.
1. The applicant applies for leave to apply for judicial review of the Decision dated 25 October 2018, which is the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
Cited by 2 cases · Cites 3 cases
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HCAL 2384/2018 [2022] HKCFI 3099 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2384 of 2018
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge K.W. Lung:
Observations for the Applicant: THE APPLICATION 1.The applicant applies for leave to apply for judicial review of the Decision dated 25 October 2018, which is 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”). His application is dealt with on paper. 3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party. The applicant 4.The applicant is a national of Pakistan. He entered Hong Kong illegally on 3 September 2013 and was arrested by the police for illegal remaining on 22 October 2013. On 5 March 2014, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Shia Muslims and a land seller named Faisal. 5.According to the applicant, he was a Sunni Muslim of Mehar in ethnicity. Sunni Muslims were known to have conflicts with the Shia Muslims. In around 2010 or 2011, the applicant had verbal fights with some Shia Muslims over certain religious issues. A few days later, the applicant was assaulted by Shia Muslims with wooden batons and hockey sticks. He sustained severe injuries and was sent to the clinic. Meanwhile, three of the applicant’s friends who were in the same fight died due to the injuries. Thereafter, the applicant also recalled that three other friends were also killed in different fights, in which he was also injured. To revenge, the applicant initiated a fight to attack Shia Muslims and had broken some members’ legs. The applicant and his friends fled as they feared the Shia Muslims would also take revenge against them. 6.As to the dispute with Faisal, the applicant claimed that his family had a land dispute with Faisal. Faisal did not honor the contract to transfer his land to the applicant’s family. After the repeated demands from the applicant’s family, Faisal hired some people to threaten the applicant’s family, including firing gunshots on one occasion outside the applicant’s house. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 9 of the Notice of Decision dated 26 January 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:
8.The applicant was originally scheduled to attend the screening interview on 9 January 2017. Nevertheless, he attended and informed the Immigration Department that he was not feeling well. On 14 January 2017, the Duty Lawyer Services (“DLS”) informed the Immigration Department that they had no instructions to act for the applicant. On 20 January 2017, the applicant confirmed that the DLS no longer acted for him and he agreed to proceed the screening interview without the legal assistance [4]-[7]. The Director proceeded with the screening interview. By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that the level of risk of harm upon refoulement was assessed to be low. 9.In elaboration, the Director found that (i) the applicant’s injuries did not attain a minimum level of severity. His allegation that his friends were killed by the Shia Muslims was speculative and that, on his own evidence, Shia Muslims were the minority group. Thus, the harms, if any, were localized [15]-[20]; (ii) as to the land dispute with Faisal, the applicant suffered no physical harms and there was no evidence that Faisal’s threats would materialize [21]-[22]; (iii) state protection would be available to him [23]-[41]; and (iv) internal relocation was a viable alternative [42]-[46]. The Board’s Decision 10.The applicant appealed the Director’s Decision to the Board. On 13 September 2018, the Board conducted an oral hearing for his appeal, during which he answered the inquires with the assistance of an interpreter [6]. 11.The Board considered the issue of credibility. In light of the brevity in the applicant’s written statements and his interview, the Board asked the applicant detailed, open and probing questions [28]. After considering the evidence, the Board decided not to attach credence to his claim. In particular, the Board noted that the applicant was unable to provide details to the claimed religious clashes [29]-[31]; that his evidence on the land dispute was materially different from that he presented before the Director [32]-[36]; and that his immigration record was inconsistent with someone who genuinely feared a risk of harm [38]. 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 29 October 2018 for leave to apply for judicial review of the Board’s Decision. 13.In his affirmation in support of his application, the applicant said he is not satisfied with the Immigration Department’s decision. His life is still in danger in his country. 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 Decisions should be examined with rigorous examination and anxious scrutiny. 16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
17.There is no valid reason to challenge the Board’s Decision. 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 25th 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
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