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

HCAL 1126/2019

[2023] HKCFI 2044

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1126 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 15 April 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 around 14 January 2016 and was arrested by the Hong Kong police on the same date. On 17 January 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 girlfriend’s family.

5.In short, the applicant claimed that his girlfriend Amra was the daughter of his aunt, the youngest sister of his father. Amra had three brothers, Amar, Nasar and Ansar. In 2011, Amra told the applicant that her brother Nasar intended to marry her to someone in London. Thus, she asked the applicant to propose for a marriage. The applicant complied with the request and asked his parents to propose to Amra’s parents on his behalf. His aunt rejected the proposal. The applicant maintained contact with Amra in the ensuing years. The first incident with Amra’s brothers occurred in 2014. One night, the applicant got into a fight with Ansar’s group but none were seriously injured. Thereafter, Amar and Ansar continued to threaten the applicant with their claimed political affiliation with a group called PML(N). Feared that their threats would materialize, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 10 under the section entitled “Basis of Claim” of the Notice of Decision dated 8 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 his claimed risk of harm was groundless. In elaboration, the Director found that (i) the circumstances, including the level of severity of the claimed ill-treatments, the claimed influence of his enemies, and his own behaviors, indicated that the further risk of harm was not substantial or foreseeable [7]-[11]; (ii) state protection would be available to him [12]-[17]; and (iii) internal relocation was a viable option [18]-[19].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 23 October 2018 and 10 December 2018 respectively, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter in the Urdu and English languages [7].

9.The Board recapped the applicant’s claim and his personal background, as well as summarized his oral testimonies [39]-[77]. Having considered all the evidence, the Board made the following findings. It noted that there were significant inconsistencies in the applicant’s claim. For example, the applicant told the Board that he stayed in Kahuta prior to his departure for Hong Kong, which was inconsistent with his written statement [82]. Also, the applicant gave contradictory accounts as to when Amar was killed [83]. He added a new claim before the Board that he and his brother were blamed for Amar’s death, a claim which was omitted before the Director [83]. Meanwhile, the applicant’s evidence as to whether Amra’s father threatened him, and if yes how many times, was vague and lacked details [85]. The Board had given time for the applicant to obtain evidence to explain the inconsistencies and omissions in his evidence. But he was unable to give further evidence for explanation. In light of these inconsistencies and omissions, the Board concluded that the applicant’s claim was not credible. It further rejected the applicant’s explanation as to why he omitted Amar’s murder before the Director [86].

10.On the basis of lack of credibility, the Board rejected the applicant’s claim and dismissed his appeal.

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

11.The applicant has filed Form 86 dated 26 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 only enclosed a copy of the Board’s Decision, without setting out any specific ground.

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 reason given above, rejected his evidence on the facts of his claim. There is no valid reason 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 15^th 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