Ahmed Shakeel v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 794/2019

[2023] HKCFI 55

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 794 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 present 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 14 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did request an oral hearing. He appeared before the Court on 23 November 2022.

The applicant

3.The applicant is a national of Pakistan.  He entered Hong Kong illegally on 18 August 2016.  On 25 August 2016, he surrendered to the Immigration Department.  On 7 September 2016 and 20 September 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by members from the Shia sect as he belonged to the Sunni sect.

4.According to the applicant, Shia and Sunni practiced different Islamic rules and ideologies.  In the end of 2013, the members of the two camps got into a fight, during which the applicant was injured and received medical treatments.  After the fight, one Shia member named Nadeem threatened the applicant, blaming him to interrupt the religious matters.  In January 2014, Nadeem intended to build a Shia Imam Bargah in Sunni area.  Members of Sunni, including the applicant, opposed this plan.  They got into a fight and the applicant was assaulted by around fifteen to twenty Shia members.  He and his family members also received death threats because of their opposition. Thereafter, the local court ordered that the plan should not be carried out. Yet, the Shia members did not comply with the court order.  Meanwhile, they also threatened to kill the applicant if he did not leave the village.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 21 February 2018 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 the claimed fear of harm upon refoulement was groundless. In elaboration, the Director found that (i) the low intensity of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[14]; (ii) state protection would be available to him [15]; and (iii) internal relocation was a viable option [16].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 7 December 2018, the Board conducted an oral hearing for his appeal, during which he answered the Board’s inquiries with the assistance of an interpreter [6].

8.Having considered the evidence, the Board found that it was implausible that a member of a much larger religious group, i.e., the Sunni sect, would be persecuted by a minority group, namely, the Shia sect [24]; that the applicant was unable to provide any details to the alleged fights [25]; that his account before the Board bore no resemblance to those provided before the Director [26] and he simply stated that he could not recall when inquired for details [26]; and that it showed that the applicant failed to provide any accounts from his own experience [27].  In these premises, the Board found that the applicant’s claim lacked credibility and dismissed his appeal.

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

9.The applicant has filed Form 86 dated 21 March 2019 for leave to apply for judicial review of the Board’s Decision.

10.In his affirmation and a statement attached to Form 86 in support of his application, the applicant said the decisions are unreasonable and the Director failed to consider all the matters raised in his claim. He also disagrees with the Board on its decisions. He complained that the Board did not take into account of his rights.

DISCUSSION

11.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).

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he understands the Board’s reasons, but his life is in danger in Pakistan as he has changed his religion. However, he admitted that he had given different evidence to the Director and the Board, which is why the Board did not believe his evidence.

13.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.”

14.The Board had assessed his case and did not accept his evidence on the facts of his case. The grounds in paragraph 10 are only his opinions without any evidence in support. He has given no valid reason to challenge the Board’s Decision.

15.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.

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

CONCLUSION

17.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