Ali Raheem v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 852/2019

[2023] HKCFI 1305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 852 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 11 July 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, 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 26 October 2010.  On 8 November 2010, he surrendered himself to the Immigration Department.  On 3 December 2010, he lodged a CIDTP claim which was later taken as a non-refoulement claim upon the commencement of the unified screening mechanism.  His claim was made on the basis that, if refouled, he would be harmed or killed by Sunni Muslims in his village and by a high ranked officer of the National Accountability Bureau (“NAB”) named Haroon.

5.According to the applicant, he had been having the familial dispute with his paternal uncle as they looked down on his mother.  Due to the dispute, a Shia college friend took him to Imaam-Bargah to attend the Shia gathering. Subsequently, the applicant converted from Sunni Muslim to Shia Muslim.  Upon knowing the applicant’s conversion, his uncle and other family members were furious and threatened him.  The assistances from the authorities were of no avail.  He also learnt that two Shia brothers were killed nearby his home village.  Thereafter, in July 2010, while the applicant was helping his friend in a taxi stand, Haroon came and extorted money from his friend.  They got into a fight and the policemen hit the applicant.  He lost conscious.  After the applicant was discharged from hospital, he was taken to the police station and was assaulted therein.  He was only released after two days.  Due to the continuous harassments from the police and the unresolved problem with Haroon, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 20 March 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 Torture risk, BOR 3 risk and Persecution risk 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 his villagers and Haroon indicated an unlikelihood of future risk of harm [13]-[25]; (ii) state protection was available to him [26]-[30]; and (iii) internal relocation was a viable option [31]-[35].

8.For reasons set out in the Notice of Further Decision dated 29 December 2016, the Director also found that the applicant’s right to life would not be violated and dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

9.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.  The oral hearing scheduled on 17 March 2017 was adjourned to 22 May 2017 for the applicant’s legal aid appeal.  On 22 May 2017, the applicant chose not to give evidence.

11.Having considered all the evidence, the Board found that the applicant was never physically harmed by his uncles; that he was not personally targeted by Haroon and there was no evidence that Haroon belonged to NAB nor was he a government official; that the policemen did not attempt to track the applicant down; that he was not harmed by the villagers for his conversion and the fear that he would be killed just like the two Shia brothers was a mere speculation; that the country of origin information showed that state protection would be available to him [23]-[30].  Further, internal relocation was also a viable option [49]-[52].

12.In these premises, the Board found that the applicant’s claim was not substantiated 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 27 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 decision made by the Director [the Board] is unfair and unreasonable. His life is in danger and he may be killed if he returns to his country.

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 did not accept his evidence on the facts of his case. The grounds in paragraph 14, supra are only his opinions or speculation without any evidence in support. He has given no valid reason 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 24^th day of May 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