Bin Ilyas Muhammad Usama v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2542/2018

[2023] HKCFI 42

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2542 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 19 October 2018, which is the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). 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.

2.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

3.The applicant is a national of Pakistan.  He entered Hong Kong illegally on 13 April 2015 and was arrested by the police on the same date.  On 16 April 2015, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Muhammad Ali’s family as they believed that he killed Ali.

4.According to the applicant, his friend Ali was murdered in 2014.  The applicant was one of the suspects who was later charged but acquitted in 2015. However, Ali’s family firmly believed that the applicant was the murderer and had been threatening him.  In February 2015, the applicant encountered a shooting incident.  He reported to the police station and told them about the grudges with Ali’s family.  However, since Ali’s family was connected with the police, the police did not continue with the investigations.  As the applicant continued to received threatening messages, he fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 29 August 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim as his claimed fear of harm from Ali’s family was groundless. In elaboration, the Director found that (i) his behaviors were inconsistent with someone who was genuinely in fear [12]-[13]; (ii) there was no evidence of state involvement [14]; (iii) state protection would be available to him [15]-[17]; and (iv) internal relocation was a viable alternative [18]-[19].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 18 July 2018, the Board conducted an oral hearing for his appeal, during which the Board sought clarifications on the material aspects of his claim.

8.Having considered the evidence, the Board found that his claim was not substantiated.  At the hearing, the Board raised concerns with the applicant in relation to the discrepancies in his oral evidence and those in his written statement regarding to the events of the murder, police visit and his relocation to Karachi [60]-[73].  However, it considered that the applicant’s responses did not explain these inconsistencies [74].  Further, despite his repeated promise to submit documents in support, the applicant failed to do so [79]-[84].  In these premises, the Board concluded that the applicant was not a witness of truth and his claim was not credible [85]-[89].

9.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

10.The applicant has filed Form 86 dated 12 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant enclosed a copy of the Board’s Decision without specifying any ground.

DISCUSSION

12.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).

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

14.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.”

15.There is no valid reason to challenge the Board’s Decision.

16.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.

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

CONCLUSION

18.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 10^th day of January 2023

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