Shahzad Raja Asim v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 861/2019

[2023] HKCFI 662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 861 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 21 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second 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 and was arrested on 31 October 2013. On 6 November 2013, he lodged a CIDTP claim. Upon the commencement of the unified screening mechanism, his CIDTP claim was taken as a non-refoulement claim and was assessed on all applicable grounds. His claim was made on the basis that, if refouled, he would be harmed or killed by Chaudhary Saleem, who was a gangster working for an influential political figure named Chaudhary Rukhsar due to a land dispute.

5.According to the applicant, Rukhsar was a politician in the applicant’s locality, who often broke his promises to the citizens and forcibly occupied people’s land for his own benefits. Saleem did most of the dirty works for Rukhsar. One day in September 2013, Saleem demanded the applicant’s father to sell Rukhsar their family land at a cheap price. Met with his father’s refusal, Saleem threatened his father without inflicting any harms. However, on 20 September 2013, Saleem brought some gangsters to the applicant’s house and assaulted the applicant and his father. After receiving medical treatments, the applicant and his father went to the police station. The police refused to take the complaint as they did not wish to irritate Rukhsar. The next day, Saleem visited their house again, demanding them to sign the land transferal documents. The applicant and his father engaged in a fight with them. They were injured, as well as Saleem. Feared of their revenge, the applicant went to hide in his cousin’s, and later, his uncle’s place. Later, the applicant’s cousin was kidnapped and some gangsters visited his uncle’s place inquiring of the applicant’s whereabouts. Out of fear, the applicant left his uncle’s place and eventually fled to Hong Kong for protection. Details of his claim are set out at paragraphs 5 to 43 of the Notice of Decision dated 16 November 2015 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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 First Decision dated 16 November 2015, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [49]-[50]; (ii) state protection would be available to him [51]-[54]; and (iii) internal relocation was a viable option [55].

8.In the Notice of Further Decision dated 13 April 2017, the Director also found that the applicant’s right to life would not be violated and thus dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

9.The applicant first appealed the Director’s First Decision to the Board. On 4 May 2016, the Board conducted an oral hearing for his appeal.

10.Having examined the evidence, the Board made the following findings. It first considered the incident happened on 20 September 2013. It found that the applicant’s claimed severe beating from Saleem and the gangsters was inconsistent with the injuries he sustained. According to his own evidence and the doctor’s diagnosis, the injuries were not serious [26]-[31]. Similarly, in the incident that happened on 21 September 2013, the applicant’s descriptions of how they hit him were inconsistent with the injuries he sustained [32]-[37]. In these premises, the Board found that the applicant’s account of events was in doubt. Taking his claim to the highest, the Board found that his claimed injuries failed to attain a minimum level of severity [41]-[42]. In any event, the Board found that state protection and internal relocation were both available to the applicant [43]-[47].

11.Therefore, in its decision dated 16 February 2017 (“the Board’s First Decision”), the Board rejected the applicant’s claim on Torture risk, BOR3 risk and Persecution risk, and dismissed his appeal against the Director’s First Decision. The applicant did not take out any application for judicial review of the Board’s First Decision, which has become final.

12.Insofar as the applicant’s appeal against the Director’s Second Decision was concerned, the Board also held an oral hearing for his appeal. After hearing his evidence on 26 October 2018, the Board considered that his evidence was of no assistance to his appeal [4] and, on his own evidence, the alleged enemies had difficulties in locating him [5]. Coupled with the findings in the Board’s First Decision, the Board concluded that the applicant’s claim on BOR 2 risk was equally unsubstantiated and dismissed his appeal against the Director’s Second Decision.

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

13.The applicant has filed Form 86 dated 28 March 2019 for leave to apply for judicial review of the Board’s Second Decision.

14.In his affirmation in support of his application, the applicant did not set out any specific ground.

DISCUSSION

15.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Second 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).

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

17.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.”

18.The applicant has not been able to raise any valid reason to challenge the Board’s Second Decision.

19.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.

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

CONCLUSION

21.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 7^th day of March 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