Khan Momin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 948/2019

[2023] HKCFI 1788

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 948 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 1 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision (“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 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 some unknown Taliban men.

5.In brevity, the applicant claimed that, in around January 2015, some unknown men visited the restaurant, which he worked in. In this first encounter, they did not talk to the applicant. However, judging from their appearance, the applicant believed that they were from the Taliban. On the next day, the same unknown men visited the applicant again and asked him to undertake a task of suicide bombing in a hospital. The applicant refused and was severely beaten. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 8 of the Notice of Decision dated 27 December 2017 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 an unlikelihood of future risk of harm [15]-[24]; (ii) state protection would be available to him [25]-[29]; and (iii) internal relocation was a viable option [30].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 4 March 2019, the Board conducted an oral hearing for his appeal, during which he testified [10].

9.The Board found that the applicant’s evidence was wholly unreliable and his explanations were unconvincing [41]. In particular, the Board identified the significant inconsistencies in the material aspects of his claim. For example, the applicant stated in his written statement that the unknown men did not talk to him in the first encounter. Yet, at the hearing, he claimed that those men were customers and already asked him to blow a bomb in their first meeting. He also provided different dates of their second encounter. Meanwhile, he omitted a third encounter at the hearing. His claim that the Taliban intended to recruit him as a suicide bomber was inconsistent with the country of origin information which stated that they normally recruited children and had to train them for four to seven months. In addition, the applicant was issued with a passport six months prior to the incidents.

10.In light of the aforesaid discrepancies, omissions and the unsatisfactory explanations, the Board refused to accept the applicant’s claim and thus dismissed his appeal.

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

11.The applicant has filed Form 86 dated 9 April 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 the Board’s Decision is unfair.

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, for the reasons above, had rejected the applicant’s evidence on the fact of his case. There is no valid ground 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 20^th day of July 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