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

HCAL 2507/2018

[2022] HKCFI 3527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2507 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 5 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 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 in March 2012 and was arrested by the police for being an illegal immigrant on 8 June 2012.  On 10 June 2012, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Zahir Shah Khan, a member of the Taliban, as well as a group of Taliban terrorists as he escaped from the Taliban training camp. 

5.According to the applicant, he was forcibly recruited to the Taliban in April 2011 for the participation in the Jihad against the Pakistan government. 25 days into the training camp, the applicant learnt that the Pakistan military had been looking for the base of the Taliban.  Feared that he would be arrested by the military for being a member of the Taliban, the applicant escaped from the camp.  He then took a shelter with his uncle.  A few months later, he heard that his brothers attacked Zahir because Zahir had been the enemy of the family and was also the one who asked the Taliban to kidnap the applicant.  The applicant feared that Zahir would take revenge against him and thus fled to Hong Kong for protection.  Details of his claim are set out at paragraphs 5 to 44 of the Notice of Decision dated 13 August 2015 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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 First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk as the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) absence of ill-treatments indicated no real or foreseeable risk of harm [50]-[56]; (ii) state protection would be available to him [57]-[58]; and (iii) internal relocation was a viable alternative [59]-[65].

8.For reasons set out in the Notice of Further Decision dated 21 March 2017, the Director also found that the applicant’s right to life would not be violated and thus dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

9.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

10.The applicant appealed the Director’s Decisions to the Board.  On 18 July 2017, the Board conducted an oral hearing for his appeal, during which he testified [5].

11.The Board noticed that the applicant was never ill-treated in the camp [23].  There was no evidence of physical or mental sufferings that attained a minimum level of severity.  Meanwhile, there was no evidence of state involvement.  The Board also rejected the applicant’s assertion that the state would not offer any protection as it contradicted with the country of origin information.  Given the lapse of time, there was also no evidence that the Taliban still had adverse interest against him [24]-[38].

12.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

13.The applicant has filed Form 86 dated 8 November 2018 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, the applicant did not set out any specific ground.

DISCUSSION

15.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).

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

17.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.”

18.The Board had assessed his case and did not accept his evidence on the facts of his case. There is no valid reason to challenge the Board’s Decision.

19.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.

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

CONCLUSION

21.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 28^th day of November 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