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

HCAL 1010/2019

[2023] HKCFI 1961

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1010 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 8 April 2019 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 (“RHC”), I shall 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 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 21 August 2015 and was arrested by the police for being an illegal immigrant on the same date. On 24 August 2015, he lodged a non-refoulement claim. His claim was made on the same basis that, if refouled, he would be harmed or killed by Faryad Hussain (“Hussain”), who had a close connection with Pakistan Muslim League (N) (“PMLN”), due to a land dispute.

5.In brevity, the applicant stated that he had been a supporter of the opposition party of the PMLN. Since late 2013, some unknown men had been harassing the applicant and his family for the subject land. Thereafter, the applicant’s family urged the applicant and his brother to relocate to Lahore to avoid the conflicts. The applicant later found out that it was Hussain, who was a member of PMLN, wanted to occupy the subject land. In late 2014, upon the applicant’s return home, his neighbour told him that Hussain had filed false cases against him because he was the eldest son in the family and, if he was jailed, Hussain could take over the subject land. The applicant and his brother thus hid in Lahore. However, in early 2015, he was told that some police were looking for him in Lahore. 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 21 July 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. 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]-[17]; (ii) state protection would be available to him [18]-[20]; and (iii) internal relocation was a viable option [21]-[26].

The Board’s Decisions

8.The applicant appealed the Director’s Decision to the Board. On 28 September 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [58].

9.The Board noted that the applicant’s testimony at the hearing was vague and varied in significant aspects, and his explanations unsatisfactory [59]. He also added that his brother went missing. Yet he did not mention his brother’s disappearance in the non-refoulement claim form [60]. Meanwhile, the Board noted that the applicant’s evidence on Hussain’s harassments on his parents was based on hearsay information. What was more untrustworthy was that (i) it was improbable that Hussain would suddenly harass his parents four to five years after he had occupied the land. Besides, there was no evidence that he had in fact done so; and (ii) even on the applicant’s own evidence, the only harassment against his parents between 2013 to 2017 was from the police who merely inquired the applicant’s whereabouts [61]. Also, the Board found that the applicant’s evidence on the incident in 2013, his report to the police and the subsequent involvement of the police was inconsistent and confusing [62]-[66]. His evidence about his parents, including their residence in the home village and his contact with them, was also inconsistent [67]-[68]. The Board further rejected the applicant’s new claim as it was significantly different from those he stated in the written statements [69]. The Board also considered the change of political environment in Pakistan as at the date of the hearing [70].

10.Having considered the aforesaid, the Board rejected the applicant’s claim as it was not credible. In any event, the Board found that the threats from Hussain, if any, were localized [85]. It also rejected the alleged false cases against the applicant as there was no evidential support and mostly based on hearsay information [85]-[86]. In these premises, internal relocation was a viable option [87].

11.Therefore, the Board concluded that the applicant’s claim was without merits and thus dismissed his appeal.

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

12.The applicant has filed Form 86 dated 15 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he said he is not satisfied with the Board’s Decision.

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 evidence and, for the reasons given, rejected his evidence on the facts of his claim. The ground set out in paragraph 13, supra is only his opinion and is 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 to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 3^rd day of August 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