Mukhtar Amir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 716/2019

[2023] HKCFI 668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 716 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 1 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”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Pakistan. He entered Hong Kong illegally on 18 October 2009 and was arrested by the police on the same date. On 20 October 2009, he lodged a torture claim, which was later rejected on 9 May 2013. On 20 May 2013, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be arrested by the Pakistani police because he jumped bail and would also be harmed or killed by Raja Shahjehan because he injured Raja in a shooting incident.

5.In around 2004, Raja allegedly forcibly occupied the applicant’s family farmland while the applicant’s father was away. One day in mid-2004, the applicant and his elder brother were working on the disputed land. Raja came with some men and demanded the applicant to leave. No one was hurt in the incident. The applicant and his elder brother went to report the wrongful occupation of the disputed land to the police. Yet, the police did not take any actions. Later, one day in mid-2008, the applicant was attacked by Raja when he was walking towards the disputed land. He had open wound and sustained bruises all over his body. His report to the police was again of no avail. Later that day, while the applicant was in a local restaurant having tea with his friend, Raja, together with six men, came to him again. All of a sudden, the applicant’s friend shot Raja and fled the scene. Raja and his follower, identified by the applicant as “Butt”, were injured.

6.Two days later, the applicant surrendered himself to the police station. During his detentions, a police officer called Ghafoor, who was affiliated with Raja, attempted to beat him for a confession on the whereabouts of the revolver used in the shooting incident. However, the applicant did not confess. Despite the applicant’s subsequent complaint to the judge about the assaults happened while he was in custody, the judge did not deal with the complaint and ordered him to be remanded for another 8 months and 13 days. Nothing eventful happened in the 8-month period. In early 2009, he was released from detention on bail. Yet, Raja still came to him for revenge. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 10 of the Notice of Decision dated 17 October 2016 by the Director (the “Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments from Raja indicated an unlikelihood of future risk of harm [21]. His past ill-treatments from Ghafoor was assessed to be a consequence of him being a suspect of the shooting incident and the assaults from the police officer were from an individual which could not be attributed to the Pakistani police force [21.3]; (ii) state protection would be available to him [22]; and (iii) internal relocation was a viable alternative [23].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 12 July 2018, the Board conducted an oral hearing for his appeal, during which he was legally represented and was assisted by an interpreter [6].

10.The Board considered the relevant legal principles and recapped the applicant’s claim and his personal background [8]-[43]. It noted that the applicant raised additional grounds of appeal/petition which stated that the Director failed to consider the risk of violation of Articles 10 and 11 of HKBOR. It relates to the applicant’s fear of being arrested and not having a fair trial in relation to the criminal case against him if refouled [45].

11.Having considered the available information, and the parties’ submissions, the Board made the following observations. The Board noticed that the applicant submitted two documents in support of his claim in relation to the shooting incident, a First Information Report (“FIR”) and an order from Lahore High Court. Insofar as the FIR was concerned, the Board identified several inconsistencies, such as the names appearing in the FIR and the details of the incident, between the information shown in the FIR and those given by the applicant in his written statements [57]-[62]. When the Board inquired the applicant about these inconsistencies, the applicant stated that he had not read the content of the FIR. Such explanation begged the question that if he did not read the FIR, why would he submit it as a supporting document [63].

12.As to the order from Lahore High Court, the Board noticed that the name of the petition was inconsistent with that of the applicant. Yet, the applicant simply stated that the people who reported to the police did not know his full name. The Board rejected this explanation as (i) the name appearing in the FIR and that in the court document was different; (ii) the applicant was legally represented as shown in the court document and (iii) the applicant also went through bail application. As a result, the Board found it hard to believe that the court document would bear a wrong name of the applicant [64]-[65].

13.Together with the concerns about the document fraud situation as indicated in the country of origin information (“COI”), the Board refused to accept the aforesaid documents could support the applicant’s non-refoulement claim [66]-[68].

14.The Board then proceeded to consider the credibility of the applicant’s claim. It noticed that, apart from stating that the disputed land was expensive, he failed to provide any evidence as to why Raja would attempt to seize the disputed land in 2004 [70]. It also found that the applicant’s evidence on the power and influence of Raja was limited and vague [72]. While it accepted that there were widespread land disputes in Pakistan, it did not lead to a conclusion that the applicant’s claim of the land dispute was credible [73], especially when the applicant could not provide concrete details regarding the motivation of land seizure and his attempts to challenge the seizure [74].

15.Further, the Board found that the applicant failed to provide credible evidence on the encounters with Raja. For example, he failed to explain why Raja would suddenly attack him in 2008, four years after Raja seized the land [75]; it was illogical that the applicant claimed to be injured at the head during the attack but could still go to restaurant with his friends two hours after the attack [76]; and the applicant had provided limited information on the shooting incident [77].

16.The Board also cast doubt on other aspects of the applicant’s claim. In particular, the applicant provided inconsistent accounts as to the following matters: his surrender to the police station [79]-[80]; his complaint to the judge [81]; his ordered remand in the prison [82]-[83]; his movements and events after the release from prison [84]-[87]; the terms of imprisonment his friends received [88]; and the discrepancy between his original written signification and the subsequent evidence [90]-[91]. All of these led to the Board’s doubts on the applicant’s claim.

17.In light of the above, while the Board accepted some aspects of the applicant’s claim, such as his detention in the prison and his experience therein, it refused to accept that the applicant had established a non-refoulement claim [92]. The Board rejected, inter alia, the applicant’s alleged land dispute, and his encounters with Raja. It also refused to accept that the applicant was charged with attempted murder arising from the shooting incident [93]-[95].

18.For the submissions on BOR 10 risk and BOR 11 risk, the Board found that, since it rejected the applicant’s claim on the attempted murder charge against him, it did not have to consider arguments about BOR 10 and BOR 11. Nevertheless, the Board accepted the arguments for the Director that BOR 10 and BOR 11 were not included as rights that were absolute and non-derogable under section 8 of HKBOR.

19.In these premises, the Board rejected the applicant’s claim and dismissed his appeal.

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

20.The applicant has filed Form 86 dated 14 March 2019 for leave to apply for judicial review of the Board’s Decision.

21.In his affirmation in support of his application, the applicant only produced a copy of the Board’s Decision, but did not raise any specific ground.

DISCUSSION

22.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).

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

24.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.”

25.The Board had rejected the applicant’s evidence on the dispute of land, his encounter with Raja and the charge of attempted murder in Bangladesh, which are major facts in support of his claim. There is no valid reason to challenge the Board’s Decision.

26.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.

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

CONCLUSION

28.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 21^st 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