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

HCAL 2581/2018

[2023] HKCFI 46

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2581 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 29 August 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 on 17 May 2014 and was arrested by the Immigration Department on 31 May 2014.  On 15 August 2014, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the authorities and by the victim’s family members because he accidently killed a person.

5.According to the applicant, he worked as a taxi driver from 2005 to 2014.  In March 2014, he accidently killed a motorcyclist during a traffic accident.  Worried that he would be identified and arrested, the applicant moved to the outskirts of Rawalpindi.  Eventually, he fled to Hong Kong for protection.  While he was in Hong Kong, he was informed by his brother that the victim’s family already identified him.  His brother was also interrogated by the police about the applicant’s whereabouts.  As a result, the applicant stayed in Hong Kong.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 28 December 2017 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 upon refoulement was groundless. In elaboration, the Director found that (i) the absence of past ill-treatments indicated an unlikelihood of future risk of harm [14]-[17]; (ii) state protection would be available to him [18]; and (iii) internal relocation was a viable alternative [19]-[24].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 28 May 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [9].

9.The Board recapped the applicant’s claim and his evidence before the Director [25]-[33].  It also clarified certain aspects of his claim at the hearing [35]-[46].  Nevertheless, when the applicant was asked about the details of the traffic incident and the aftermath of the incident, he stated that he did not wish to elaborate it as he already stated in the statements and talking about the incident made him feel depressed [44]-[45].

10.Having considered the applicant’s evidence, the Board made the following findings.  It highlighted several concerns over the details of the traffic incident which the applicant refused to clarify [49]-[50].  It had difficulty in understanding why the applicant’s taxi would be identified if the visibility at the material time was poor [51].  It also cast doubt on the applicant’s evidence that he continued to work as usual after the incident as, if the applicant was worried about being identified, why would he continue to drive his taxi around? [52].  The Board further considered that the applicant’s source of information, namely, his brother, was unreliable and questionable [53].  Meanwhile, he failed to provide a satisfactory answer as to how the victim’s family could identify his taxi [54]. As to his identification, the Board noticed that he had used a different name traveling abroad.  If he returned with the different name, it was unlikely that the authorities could identify him as the culprit of the traffic incident [55].  Furthermore, the applicant failed to produce any documents in support of his claim [57].

11.Insofar as the issue of state protection was concerned, the Board noticed that, on previous occasions which the applicant violated the law, due process was in effect in the Pakistani legal system.  In addition, on the applicant’s evidence, the victim’s death might attribute to his hit and run. He was therefore liable to face the legal consequences of his behaviors [60]. In any event, on the applicant’s own evidence, relocation would be a viable option if he could avoid the authorities in the airport [61].  In passing, the Board noted that the applicant was willing to answer the inquiries prior to the questions related to the traffic incident appeared.  Despite the concerns expressed by the Board, the applicant still gave up the opportunities to address these concerns.  In this light, the Board also opined that the applicant had not relieved himself of the responsibility in making out his claim.

12.For the above reasons, the Board rejected the applicant’s claim as it lacked credibility.  Therefore, the appeal was dismissed.

Application for leave to apply for judicial review of the Board’s Decision

13.The applicant has filed Form 86 dated 16 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 enclosed a copy of the Board’s Decision, but he 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 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