Masood Hassan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 746/2019

[2023] HKCFI 1066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 746 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 6 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 1 March 2015 and was arrested by the police on the same date.  On 3 March 2015, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by members of the Pakistan Tehreed-e-Insaf (“PTI”) because he refused to join them.

5.The applicant claimed to be a member of the Pakistan People’s Party (“PPP”).  In around 2008 or 2009, his uncle changed political alliance from PPP to PTI and invited him and his father to join.  They refused.  Thereafter, they encountered the first attack in which around seven PTI members attacked them. He was injured and treated in a hospital.  One month after the first attack, the applicant and his father encountered eight to ten PTI members who attempted to attack them again but failed because of the crowd.  The applicant sought to report both incidents to the police but the reports were of no avail.  Out of fear, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 18 April 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 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 the level of risk of harm from the PTI members was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[15]; (ii) state protection would be available to him [16]; and (iii) internal relocation was a viable alternative [17].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 23 November 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [32].

9.The Board recapped the applicant’s personal background and his claim. It also summarized the applicant’s oral evidence during the hearing [58]-[97]. Having considered all the evidence, the Board found that, while the applicant equipped with knowledge about the politics in Pakistan, he provided inconsistent accounts such as the date when his uncle joined the PTI [103].  He also brought up a new fact that his grandfather was once a senior officer of the PPP which was omitted before the Director [104].  The Board further cast doubt on the applicant’s evidence on his involvement with the PPP as it was vague and lacked details [105]-[106].  It was also not convinced that the applicant’s uncle would act so quickly to attack them right after he said that he would give them time to consider [107].  In addition, there were other routes for his uncle to persuade them to join the PTI, rather than using violence [108]. Meanwhile, the applicant did not provide a persuasive explanation as to why his father was not actively targeted afterwards if his uncle intended both of them to join the PTI [109]-[110].  In summary, the Board found that the applicant’s evidence on the material facts were inconsistent and problematic [111].

10.In light of the aforesaid, 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 18 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 said he does agree with the Board and asks the Court to re-check his case.

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, for its reasons given, did not accept his evidence on the facts of his case. 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 26^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