Waseem Qaisar Alias Muhammad Zahid v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 645/2019

[2022] HKCFI 3588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 645 of 2019

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 4 January 2019 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 last entered Hong Kong as a visitor on 21 August 2003 and was permitted to remain until 4 September 2003.  He did not depart and had overstayed since 5 September 2003.  On 24 November 2006, he was arrested by the police for the offences of common assault and theft.  On 7 June 2007, he raised a torture claim.  However, he absconded and the Immigration Department took no further action on his torture claim.  On 12 February 2014, he applied to reactive his torture claim.  Yet, it was treated as withdrawn since the applicant failed to submit the completed non-refoulement claim form within the time limit.  On 30 December 2016, he again requested to re-open his claim.  Eventually, the Board allowed his request.  His claim was made on the basis that, if refouled, he would be harmed or killed by members of the Pakistani Muslim League-Q (“PMLQ”) because of his membership with the Pakistani People’s Party (“PPP”).

5.According to the applicant, since he joined the PPP in around 2001 or 2002, he had been following his brother, an active member of the PPP, in attending meetings, rallies and assisting in the elections.  In early 2003 to mid-2003, there were fights between the members of PMLQ and PPP.  In one incident, the members from both parties were arrested and the applicant was later bailed out by his brother.  In July 2003, his brother was killed by members of the PMLQ.  Thereafter, the applicant acted in his brother’s role. However, he received death threats from those who killed his brother.  Out of fear, he fled to Hong Kong for protection.  Details of his claim are set out in paragraph 8 of the Notice of Decision dated 24 September 2018 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 groundless.  In elaboration, the Director found that (i) the claimed fear of harm originated from a private dispute with PMLQ members without party or state involvement and the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [18]-[20]; (ii) state protection would be available to him [21]; and (iii) internal relocation was a viable alternative [22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 13 December 2018, the Board conducted an oral hearing for his appeal, during which he testified [4].

9.The Board observed that the applicant was vague about the date of joining the PPP; that the information about his brother’s death was hearsay; that he had done nothing while acting in his brother’s role and he could not explain why members of the PMLQ would be hostile against him; that he could opt to not file cases against the killers to avoid the threats; that his belief that his life would still be in danger was speculative; and that his immigration history, including the delay in lodging the non-refoulement claim, significantly undermined his credibility [5.1]-[5.17].  In light of the aforesaid observations, the Board concluded that the applicant’s claim lacked credibility.

10.In passing, the Board proceeded to evaluable the applicant’s case against the individual grounds.  It found that there was no evidence of state involvement; that there was no evidence of physical or mental harms; and that, according to the country of origin information, internal relocation was a viable alternative [7]-[34].

11.In these premises, 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 6 March 2019 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 does not agree with the Board’s Decision because his life is still in danger in his home country. He cannot go back there.

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 Board had assessed his case and did not accept his evidence on the facts of his case. There is no valid reason from the applicant 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 6^th day of December 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