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

HCAL 178/2019

[2023] HKCFI 90

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 178 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 29 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”). See paragraph 13 below.

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him on 19 October 2022. However, he was absent without prior notice to the Court. His application is therefore dealt with on paper.

The applicant

3.The applicant is a national of Pakistan. He last entered Hong Kong on 30 July 2003 and was permitted to remain as a visitor until 13 August 2003. He did not depart and had overstayed since 14 August 2003. On 12 January 2008, he was arrested by the police for overstaying. On 20 June 2008, he lodged a torture claim, which was later taken as a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by some Muslims due to a religious dispute.

4.In summary, the applicant’s fear of harm arose from a dispute that happened among him and his Muslim friends at school. The applicant was born into a Christian family. One day, he had a fight with his friends who disagreed with his views on certain religious topics. He was beaten and threatened. He sustained injuries and was treated with painkillers. The same night, some Muslims, including his friends, visited his house and threatened to kill him as he insulted Islam during the fight. While he was not hurt, he escaped to other villages out of fear. Thereafter, upon the advice of his family, he fled to Hong Kong for protection. While he was in Hong Kong, he learnt that his mother was harassed by Muslims. There were also news reporting the harassments and killings against Christian families. As a result, the applicant decided to seek protection in Hong Kong. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 11 July 2014 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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 First Decision, the Director dismissed the applicant’s claim as the level of risk of harm from the Muslims was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [17]-[19]; (ii) state protection would be available to him [20]; and (iii) internal relocation was a viable alternative [21].

7.In the Notice of Further Decision dated 10 March 2017, the Director also found that the applicant’s right to life would not be violated and thus also dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

8.The applicant appealed the Director’s First Decision to the Board. On 12 December 2014, the Board conducted an oral hearing for his appeal, during which he testified. The applicant stated that the Pakistani police was under the influence not to protect the Christians and he would be arrested on arrival and be killed by his enemies [6]. He also attached a document purportedly downloaded from the website, the content of which was addressed to a police station and asked for a case of treason be filed against all Christians who fled Pakistan [8]-[9].

9.Having considered the evidence, the Board made the following findings. The Board found that the applicant’s claimed injuries did not attain a minimum level of severity; that the fight was with his classmates who were not public officials; and that the crowds gathering outside his house threatening him were not acting for the state [53]-[57]. Meanwhile, the Board found that the applicant did not discharge the burden of proving that the state failed to offer him protection. In particular, the documents submitted by him were attached little weights as they were generalized and not authentic [66]-[71]. The Board found that the applicant was not accused of by the police or state, he was never sought by them and he was able to leave Pakistan on his own passport [73]. Further, the country of origin information supported a finding of availability of state protection [76]-[93]. In addition, he was able to live without troubles in other areas of Pakistan before he came to Hong Kong, which showed that internal relocation was a viable option for him [104]-[106].

10.For the aforesaid findings, in the decision dated 10 September 2015, the Board rejected the applicant’s claim on the grounds of Torture risk, Persecution risk and BOR 3 risk, and dismissed his appeal against the Director’s First Decision (the “Board’s First Decision”).

11.On 20 July 2018, the Board held an oral hearing for the applicant’s appeal against the Director’s Second Decision. It noted that the applicant’s grounds of appeal were that the Director did not conduct a screening interview for his ground on BOR 2 risk and that the Director failed to consider the aspect of state protection [11]. It took into account the applicant’s additional facts and materials [42], and also considered his oral evidence that killings were taken place every day in Karachi, that his cousin was shot on the leg, that Christians were kidnapped from home and that his family members escaped to seek protection in Thailand [43].

12.The Board considered that, on the applicant’s own evidence, he had committed no crime in danger of being subjected to capital punishment without due process of law [45]. Thus, the Board concluded that, after considering his case on all the available evidence and material, there was no evidence that his right to life would be violated.

13.By way of a decision dated 29 October 2018, the Board rejected the applicant’s claim on BOR 2 risk and dismissed his appeal (the “Board’s Second Decision”).

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

14.The applicant has filed Form 86 dated 18 January 2019 for leave to apply for judicial review of the Board’s Second Decision.

15.In his affirmation in support of his application, the applicant attached a 19-page of grounds, which are summarized below.

(1)  Misdirection in law: the adjudicator misdirected himself [sic] on the law by taking into account that the applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future.

(2)  Procedural impropriety / unfairness: failure to carry out sufficient research and inquiry into the COI conditions with regard to the applicant’s circumstances; failure to call for psychological and psychiatric evaluations and reports; the adjudicator applied the incorrect standard of proof; and failure by the assigned duty lawyer resulted in lack of legal representation.

(3)  Irrationality: failure to consider the updated COI and give due weight to it, and the decision is therefore Wednesbury unreasonable; failure to making a finding of the fact as to whether there exists in Pakistan a constant pattern of gross flagrant or mass violation of human rights; failure to analyze and assess state protection in Pakistan, without due regard to the extended state protection; the adjudicator took into account irrelevant considerations or did not take into account relevant considerations, cherry picking COI without regard to the COI in favour of his case.

DISCUSSION

16.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).

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

18.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.”

19.As to the grounds in support of the applicant’s application as set out in paragraph 15 supra, they do not assist his application. Most of the grounds are his personal opinions or comments without evidence in support. The Board has to take into account of his past treatment or experience in order to project the probability of him being subjected to the risks if he returns to Pakistan. There is nothing amiss in this approach. The applicant had raised no issue on his psychology or psychiatric condition at the hearing. Naturally, the Board did not raise these issues and call for the reports. All the grounds fail.

20.I have borne in mind that in Form 86, the applicant seeks to challenge the Board’s Second Decision, which is on BOR 2 only. The other risks (the Torture risk, the BOR 3 risk and the Persecution risk) had been dealt with in the Board’s First Decision. Although he also mentioned these risks in Form 86, they are not the subject matter of the Board’s Second Decision. If the applicant is to challenge the Board’s First Decision as well, he is seriously out of time. But he has not given any explanation for his delay. For this reason alone, his application for extension of time to apply for leave to apply for judicial review of the Board’s First Decision has to be dismissed.[1] In any event, the applicant has not been able to raise any valid grounds to challenge the Board’s First Decision. The Court should not extend time for the applicant to apply for leave to apply for judicial review of the Board’s First Decision.[2]

21.The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

22.There is no valid reason from the applicant to challenge the Board’s Second Decision.

23.The Court does not find any error of law or procedural unfairness in the Board’s Second Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

25.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss his application.

Dated the 13^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