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

HCAL 778/2019

[2023] HKCFI 375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 778 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 oral submissions by the Applicant 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 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 15 April 2009 and was arrested on the same date. On 18 April 2009, he raised a torture claim which was rejected on 21 June 2013. On 28 June 2013, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his two uncles, Shehzad and Younas, due to a property dispute.

5.According to the applicant, his grandfather died intestate and left a commercial property. It was intended to be distributed equally among the sons, including the applicant’s father and the two uncles. The two uncles took over the property and refused to share with the applicant’s father. The applicant’s father reported to the police, leading to the arrest of the two uncles. Two days later, Shehzad got into a gunshot fight with the applicant’s father, during which his father was shot on the leg. Later, the uncles also attacked the applicant as they feared that he would bring legal actions against them because he was the next of kin of the property. In January 2008, while the applicant was home with his mother and brother, Shehzad came and shot his brother. The applicant escaped but his brother died from the shooting. In February 2009, he encountered Younas outside the disputed land and Younas fired at him. He was able to escape. Eventually, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 25 May 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 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.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 ill-treatments inflicted did not attain a minimum level of severity [21]; (ii) the uncles did not possess the intention to harm or kill him and their threats were localized [22]; (iii) he was not a target of the Pakistani government [23]; (iv) state protection would be available to him [24]-[26]; and (v) internal relocation was a viable option [27]-[30].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 16 January 2019, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [5].

9.The Board recapped the applicant’s evidence before the Director and summarized his oral evidence before the Board [21]-[42]. Having considered the evidence, the Board found that the applicant’s claim was unsubstantiated [44]. In particular, the Board noted that the applicant was inconsistent as to whether his grandfather divided the disputed land before he passed away [46]; that he provided confusing evidence on his uncles’ political affiliations [48]; his evidence was also confusing as to who assisted him in escaping to China, whether it was his friend or a political group [49]; and his evidence on his father’s death was at odds with his prior written statements [50].

10.In light of these significant discrepancies which were not satisfactorily clarified by the applicant, the Board rejected him as a credible witness and found that his claim lacked credibility. His appeal was therefore dismissed.

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

11.The applicant has filed Form 86 dated 20 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 complained that the Board’s Decision is unfair.

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. The ground in paragraph 12, supra, is only his opinion without any evidence in support. There is no valid reason from the applicant 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 15^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