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

HCAL 735/2019

[2023] HKCFI 243

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 735 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 11 March 2019 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 5 July 2014.  He surrendered himself to the Immigration Department on 4 September 2014.  On 19 November 2014, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his eldest uncle Iqbal due to a land dispute.

5.According to the applicant, his grandfather died intestate in 1991.  Under the Pakistani law, the sale proceeds of the land should be distributed equally among the children.  However, Iqbal refused to sell the land and arbitrarily occupied the land for his own residence.  The applicant’s father refused to transfer his shares to Iqbal and sued him in court.  The court found in favor of Iqbal in 2002 and he went on to register the land under his name.  The applicant believed that Iqbal’s victory was due to his bribery to the judge as he was influential and well connected.  Later in 2013, Iqbal’s death threats started.  Out of fear, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 27 February 2018 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 was groundless.  In elaboration, the Director found that (i) the low possibility of being targeted indicated an unlikelihood of future risk of harm [14]; (ii) there was no evidence that his uncle was as influential as claimed [15]; (iii) state protection would be available to him [16]-[18]; and (iv) internal relocation was a viable option [19]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 21 November 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [27].

9.Having assessed the applicant’s evidence, the Board found that his claim lacked credibility.  At the outset, the Board found that his claim of land dispute was consistent with the country of origin information.  However, it expressed concerns over the applicant’s claimed threats from Iqbal since he already won the court case and registered the land.  The applicant explained by making new claims.  He stated that Iqbal intended to seize his parents’ land and he knew this from his mother.  However, he provided different dates when he was informed by his mother.  He also claimed that Iqbal threatened him and his brother annually even before the 2002 court case.  The Board found these new claims to be unsubstantiated as he failed to mention them promptly and, in fact, Iqbal would not gain any benefits even if he hurt the applicant and the applicant’s brother since their father was the person of interest.  In addition, the applicant testified that his parents were not harmed by Iqbal [29]-[35].

10.In light of these problematic evidence and unsatisfied explanations, the Board concluded that the applicant invented the new claims and thus he was not a credible witness.  For these reasons, the Board rejected that there was a land dispute between the applicant’s family and his uncle or that Iqbal had made any threats to them [36].  The applicant’s claim was therefore rejected and his appeal dismissed.

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

11.The applicant has filed Form 86 dated 15 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 said his problem is still not solved and he will be in danger if he returns to his country.

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 applicant’s reasons in paragraph 12, supra are not valid 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 6^th day of February 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