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

HCAL 50/2019

[2023] HKCFI 255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 50 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 entered Hong Kong illegally on 12 May 2015 and surrendered himself to the Immigration Department. On 3 November 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Chaudhry Riaz who was the administrator of the Pakistan Muslim Party (Nawaz) (“PML(N)”) because the applicant refused to support the party.

5.According to the applicant, he was an active supporter of the Pakistan People’s Party (“PPP”) and was popular among the villagers. Some of the villagers voted for the PPP because of him. Since 2010, Riaz had been asking the applicant to quit the PPP and join PML(N) instead. The applicant never agreed. As the general election in 2013 was approaching, Riaz’s demands for the applicant to join the PML(N) escalated to death threats. Even the police officer told the applicant to do what Riaz said when he reported the death threats. The death threats stressed the applicant. In 2011, he decided to leave for Lahore. In around 2012, he was told by his family that Riaz located him in Lahore. Thereafter, in the 2013 election, PML(N), while won the general election, lost in his village and Riaz was blamed for the loss. Feared that Riaz would revenge and the death threats would materialize, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 5 September 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 from Riaz was groundless. In elaboration, the Director found that (i) his claimed risk was not as imminent as claimed [12]-[13]; (ii) there was no evidence of state involvement [14]; (iii) state protection would be available to him [15]-[17]; (iv) internal relocation was a viable alternative [18]-[21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 3 September 2018, the Board conducted an oral hearing for his appeal.

9.The Board recapped the applicant’s claim and his personal background [19]-[25]. Having considered the evidence, the Board did not accept him to be a credible witness. In particular, the Board noticed that the applicant’s evidence contradicted with the country of origin information (“COI”) and he demonstrated little knowledge about politics. It was implausible that Riaz would target him personally [28]-[58]. Further, the Board found that the applicant only received verbal threats. Despite the applicant claimed that Riaz and his followers carried wooden sticks, they did not hurt the applicant neither did they harm the applicant’s family members. As a result, Riaz did not exhibit any real intention of harming or even killing him [59]-[66]. In any event, state protection and internal relocation were both viable alternatives [68]-[83]; [112]-[115].

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 8 January 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 the Director had failed to take into consideration of the COI that is relevant to his case and made his conclusion. The Board had adopted the Director’s Decision.

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. It can adopt the Director’s Decision as well[1]. It had also referred to the relevant COI and it did not accept his evidence on the facts of his case. The ground in paragraph 12 above is only his opinion without any evidence in support. 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 13^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