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

HCAL 623/2019

[2023] HKCFI 130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 623 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 28 December 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 attempted to enter Hong Kong on 10 August 2011 but was refused permission to land.  A day prior to his arrival in Hong Kong, a legal representative raised a torture claim on his behalf.  His torture claim was rejected on 31 January 2012 and the subsequent petition to the Board was dismissed on 10 May 2012.  His application to the UNHCR was also closed on 13 November 2012.  Thereafter, on 29 July 2013, he lodged a non-refoulement claim which was assessed in all applicable grounds other than that on torture risk[1].

5.The applicant’s claimed fear of harm was from his cousin Asif Ali Khan. According to the applicant, he borrowed a loan from Asif to purchase a taxi to support his family.  Asif was a supporter of Pakistan Muslim League (N) (“PMLN”) and was connected with a politician.  However, in February 2011, the applicant’s taxi was stolen.  Knowing that he might default the loan, Asif started to threaten him.  The applicant’s report to the police was of no avail.  Thus, he fled to Karachi to avoid Asif.  Yet, his mother told him that Asif went to Karachi to locate him.  Out of fear, he escaped to Hong Kong for protection.  Details of his claim are set out at paragraph 10 of the Notice of Decision by the Director dated 4 June 2018 (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 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”);

b.  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

c.  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.The Director considered the country of origin information (“COI”) submitted by the applicant’s legal representative.  By way of the Director’s Decision, he rejected the applicant’s claim as the claimed fear of harm from Asif was groundless.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [18]; (ii) there was no indication that Asif intended to harm or even kill him [19]; (iii) the dispute with Asif was a private one without state involvement [20]; (iv) his delay in seeking protection was inconsistent with someone who genuinely feared a risk of harm [21]; (v) state protection would be available to him [22]-[27]; and (vi) internal relocation was a viable alternative [28]-[30].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 11 October 2018, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter [36]; [64]-[85].

9.Having considered the evidence, the Board found that the applicant was not a witness of truth [89].  It identified several internal inconsistencies in the applicant’s evidence, such as the date of the loan, the date when the taxi was stolen, and the deadline for repaying the loan [93].  The Board also observed that it was likely for the applicant to borrow from his other brothers to settle the loan if his life was at stake [94] and that his payment for trip to Hong Kong might settle a part of the loan [95].  It also considered that the applicant failed to provide the document in support of the theft of his taxi [97].  It refused to accept that Asif was able to find him in a large city like Karachi [98]-[99].

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 5 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant repeated his reasons for coming to Hong Kong, that is, he was unable to repay his debt and he feared that he will be killed by the creditors.

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 Decision 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 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.

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 26^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