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

HCAL 834/2019

[2023] HKCFI 1342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 834 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 February 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 20 February 2016 and was arrested by the police on the same day. On 22 February 2016, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his paternal uncle due to a land dispute.

5.According to the applicant, his grandfather transferred the disputed land to his father because his grandfather and his uncle were not even on talking terms. His uncle was discontent with this decision and had been assaulting his brothers and sick father from 2009 to June or July 2015. The applicant was among the victims. In February 2015, his uncle even attempted to kill him. Luckily, he was not hurt. In March or April 2015, his uncle framed him for the assassination of their provisional minister. In addition to the land dispute, the applicant also claimed that his uncle, a member in the opposition political group, urged them to vote for his party but they refused. Feared that his uncle would eventually harm or kill him, he fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 9 January 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 his claimed fear of harm was groundless. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated no real or foreseeable risk of harm [13]-[16]; (ii) state protection would be available to him [17]-[25]; and (iii) internal relocation was a viable alternative [26]-[30].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 27 November 2018, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter [11].

9.Having considered the evidence, the Board made the following findings. First, it was not uncommon to have land disputes which were often settled by force in Pakistan as shown in the country of origin information (“COI”) [86]. Nevertheless, the Board was not persuaded that the uncle had intention to cause harm or even kill the applicant for the land after assessing the uncle’s past behaviors [88]. Insofar as his claim of being framed by his uncle for the aforesaid assassination, the Board rejected it as it was not credible [89]. Secondly, on the applicant’s own evidence, he was able to travel without encountering any troubles [91]. Thirdly, the applicant was not the registered owner of the disputed land, nor was he the eldest son, and it was unreasonable that his uncle would target him [92]. Fourthly, the inconsistencies in his claim also undermined his credibility [93]. Fifthly, the applicant could have resolved the land dispute with the available mechanism in his home country [94]. Sixthly, the Board refused to accept the applicant’s version that the dispute escalated [95]. Finally, the applicant’s prolonged stay in Pakistan and his delay in seeking protection also indicated that there was no real risk of harm [96]-[97].

10.In addition, the Board rejected the applicant’s claim that his uncle was influential enough to seek help from the political group to locate and harm him [99]-[104]. In any event, state protection and internal relocation were both shown in the COI as available to the applicant [105]-[112].

11.For the aforesaid 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 26 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 said his life will be at risk in his native country. He asked the Court to review his case and let him stay in Hong Kong till his problems have been solved. He said his parents are also trying to solve his problems.

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, for the reasons given, did not accept his evidence on the facts of his case. The grounds in paragraph 13 are not valid 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 31^st 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