Case Document

100%Judiciary

HCAL 2505/2018

[2022] HKCFI 3625

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2505 of 2018

BETWEEN
	Nawaz Rab	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 18 October 2018 (“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 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 26 October 2015 and was arrested by the police the following day. On 30 October 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by some members of a terrorist group called Lashkar-e-Jhangvi (“LeJ”).

5.In short, the applicant claimed that some members from the LeJ had been threatening him since 2010 after seeing his activities on Facebook. In fact, he is a liberal Muslim, whom LeJ aims at eliminating. He informed the immigration officer that he had made some comments on his Facebook, which provoked LeJ. However, he refused to disclose the contents of those comments or further details to the immigration officer. Initially, there were only verbal threats. In February 2013, two unknown LeJ members attempted to shoot him. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 9 January 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. In elaboration, the Director found that (i) there were no substantial grounds to believe that he would have any real chance of facing real or personal risk of harm from the LeJ members [12]-[20]; (ii) state protection would be available to him [21]-[23]; and (iii) internal relocation was a viable alternative [24]-[26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 30 August 2018, the Board conducted an oral hearing for his appeal, during which he gave evidence with the assistance of an interpreter [4]; [28]-[39].

9.The Board considered the country of origin information on LeJ. It accepted that LeJ was an extremist group which conducted several terrorist attacks [42]. However, the Board noticed that the applicant’s accounts were vague and lacked details. He also raised new points that were not advanced before the Director [44]. He was also inconsistent about the attack happened in February 2013 [49]-[50]. His explanation of failing to report to the police was implausible [51]. Meanwhile, on the applicant’s own evidence, he was able to live worry-free at home between February 2013 and October 2015. As a result, the Board was not persuaded that the applicant was threatened or attacked by the LeJ members.

10.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

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

12.In his affirmation in support of his application, the applicant said he is not satisfied with the Immigration Department’s decision as they disregarded his dangerous situation.

DISCUSSION

13.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).

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

15.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.”

16.The reason in paragraph 12 above is not a valid reason to challenge the Board’s Decision.

17.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.

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

CONCLUSION

19.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 13^th day of December 2022

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 13/12/2022 Nawaz Rab Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 13/12/2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9974/18/1/247/P1928 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3265/17 (Formerly RBCZ 13984/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)