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

HCAL 747/2019

[2023] HKCFI 1073

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 747 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 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 5 June 2015 and surrendered to the Immigration Department on 12 June 2015. On 28 December 2015, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by some people from Pakistan Muslim League (N) (“PML(N)”). 

5.According to the applicant, his whole family supported the Pakistan People’s Party (“PPP”) and, while he did not hold any official post in the PPP, he used to help them collect votes.  During the elections in 2013, the applicant was approached by the PML(N) members for the votes but he refused. He was verbally threatened by two of them, Haji and Ala.  One day in mid-2014, the applicant was intercepted and assaulted by Haji, Ala and other PML(N) members.  He sustained injuries and received medical treatments.  Three months later, he was again attacked by a group of people, including one of his previous attackers.  Out of fear, the applicant left his home village and eventually came to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 14 March 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 PML(N) 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 [12]; (ii) state protection would be available to him [13]; and (iii) internal relocation was a viable alternative [14]-[18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 28 November 2018, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of the interpreter [7].

9.The Board explored the details of his claim.  Having considered all the evidence, the Board noted, inter alia, that the applicant’s evidence on the durations he stayed in other places before coming to Hong Kong was inconsistent [27]; that the applicant was vague about the claimed elections [28]; that his evidence on his own political involvement was generalized [30]-[31]; that the applicant had no knowledge about the recent winning of PPP in the national election in 2018 [32]; that he confirmed before the Board that he had a land dispute in mid-March 2014 but it was unrelated to his claimed fear of harm.  Yet, he had stated before the Director that the land dispute was also a source of fear [34]; that he was vague about how he solicited votes for the PPP during the 2013 election and also failed to provide any details of his involvement with the PPP [35]-[37]; that he provided confusing evidence in relation to the first attack [38]; that he contradicted himself in relation to the injuries sustained [41]-[43]; and that his evidence showed that he could relocate to other areas [45].

10.Based on the above observations, the Board found that the applicant did not have an actual involvement with the PPP; that he was not a campaigner for the PPP in the 2013 election; that he was not harmed by the PML(N) members nor the attacks had any linkage to the PPP; that he was never pursued to harm in Pakistan and that he did not have any ongoing interest or involvement in the Pakistan politics which would give rise to any prospect of risk of harm [49].

11.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

12.The applicant has filed Form 86 dated 18 March 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

14.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).

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

16.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.”

17.The Board had assessed his case and 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.

18.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.

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

CONCLUSION

20.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