Arman Azam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 782/2019

[2023] HKCFI 1005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 782 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 5 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 27 November 2006 and was arrested by the police on 7 May 2007.  On 28 December 2007, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by (i) Muttahida majlis-e-Amal (“MMA”) as he violated Islamic law; (ii) Hennah’s family as Hennah, his lover, committed suicide; and (iii) the police as Hennah’s family filed a false case against him.

5.According to the applicant, he had an underground affair with Hennah for two years starting in around 2004.  In 2005, he intended to marry by Hennah but both of their families disapproved of this relationship.  The couple therefore eloped.  At the beginning of 2006, they went to a mosque and wanted to register their marriage.  However, the Imam refused as interreligious marriage was prohibited and it was illegal to live with a girl prior to marriage.  In the mosque, they also met a group of MMA, a group which was established to enforce the Islamic law.  A few days later, the police and the MMA members visited the house of the applicant’s friend, looking for the applicant and threatening that the couple would be killed as they broke the Islamic law.  The police also called Hennah’s family.  The applicant then escaped to Daska but he could not reach Hennah.  While he was in Daska, he learnt from his friend that Hennah’s family filed a kidnapping case against him and that Hennah killed herself for being forced to marry another man.  Feared that he would be found by his enemies, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 29 January 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, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk.  In elaboration, the Director found that (i) the absence of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) state protection would be available to him [13]-[17]; and (iii) internal relocation was a viable alternative [18]-[23].

8.For reasons set out in the Notice of Further Decision dated 1 June 2017, the Director found that the applicant’s right to life would not be violated and thus rejected his claim on BOR 2 risk (the “Director’s Second Decision”).

9.For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as the “Director’s Decisions”.

The Board’s Decision

10.The applicant appealed the Director’s Decisions to the Board.  On 6 April 2016 and 29 November 2018, the Board conducted an oral hearing for his appeal, during which he testified [4]. 

11.Having considered the evidence, the Board made the following findings. It found that Hennah’s family did not attempt to locate the applicant while he was away from the home village [29]; that Hennah’s family did not resort to honor killing against her but only asked her to marry another man [30]; that, since Hennah had gone home and the police did not actively look for the applicant, it was unlikely that the alleged kidnapping complaint was an on-going investigation [31]; that there was no evidence suggesting that Hennah’s family was well connected [32]; that, since Hennah’s death, there was no reason that MMA would pursue the applicant [33]; that the applicant could relocate to other areas safely [35]; and that it had been almost 12 years since their elope, which showed that it would be unlikely that it was still an on-going concern [36].

12.In light of the aforesaid findings, the Board rejected the applicant’s claim and dismissed his appeal.

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

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

14.In his affirmation in support of his application, the applicant said the Board’s Decision is not reasonable.

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 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 Board had assessed his case and did not accept that there will be any real risk for him to return to his country. The ground in paragraph 14 is only his personal opinion. There is no valid reason from the applicant to challenge the Board’s Decision.

19.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.

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 Decision. Accordingly, I dismiss his application.

Dated the 20^th day of April 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