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

HCAL 824/2019

[2023] HKCFI 2076

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 824 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 present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of Decision of the Director dated 15 August 2017 (“the Director’s Second Decision”) on the BOR 2 risk and the Decision dated 25 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Second Decision on BOR 2 risk as described below (“the Board’s Second Decision”).

2.The applicant’s leave application in relation to the Director’s Second Decision has been pursued by appeal to the Board and determined by the Board’s Second Decision. As such, it fails in limine and must be dismissed as decided by the Court of Appeal in Re: Moshsin Ali [2018] HKCA 549[1].

3.The applicant did ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 11 January 2023.

4.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

5.The applicant is a national of Pakistan. He entered Hong Kong illegally on 11 November 2015 and, on 16 November 2015, surrendered to the Immigration Department. On 21 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 Saqib and his accomplices.

6.In brevity, the applicant witnessed the murder of his friend by Saqib and Saqib’s subordinates in December 2009 in his shop. He believed that the reason of killing was that his friend had different political affiliation from Saqib’s. On the date of the murder, as a witness, the applicant was brought to the police station. The police officer informed him that they might need his assistance in identifying the suspects afterwards. Initially, the applicant was afraid to resume business. He only resumed operating his shop after a police reassured him that there was police protection nearby. Later, however, the applicant was hit by a car and hospitalized. It took him five to six months to fully recover from the injuries. After he was discharged from the hospital, he started receiving phone calls of threats from Saqib. He believed that the car accident and the threats from Saqib were to prevent him from attending the police identification parade. To avoid Saqib, the applicant had been hiding in different places from 2010 to 2014. In 2015, upon his return to visit his family, the applicant stated that he got into troubles with the police and Saqib. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 13 of the Notice of Decision dated 1 September 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

7.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”).

8.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 absence or low frequency of ill-treatments from Saqib and his subordinates indicated an unlikelihood of future risk of harm [18]-[21]; (ii) state protection would be available to him [22]-[30]; and (iii) internal relocation was a viable option [31]-[36].

9.For reasons set out in the Notice of Further Decision dated 15 August 2017, 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”).

The Board’s Decisions

10.The applicant first appealed the Director’s First Decision to the Board. Having considered the relevant legal principles and the available documents, the Board decided to dispose of the appeal on paper without an oral hearing [17]-[21].

11.The Board recapped the applicant’s claim and his personal background [23]. It found that there was no evidence to suggest that the car accident was perpetrated by Saqib [25]; that the alleged threats from Saqib, if established, were for private reasons as he wanted to stop the applicant from attending the identification parade [26]; that the COI showed that police protection would be sufficient [31]-[33]. For these reasons, the Board concluded that the applicant’s claim under Persecution risk failed. For the same reasons, his claim under Torture risk and BOR 3 risk also failed [35]-[43]. In any event, internal relocation was a viable option. Therefore, by way of a decision dated 16 May 2017, the Board dismissed his appeal against the Director’s First Decision (the “Board’s First Decision”). The applicant did not apply for leave for judicial review of the Board’s First Decision.

12.Insofar as the applicant’s appeal against the Director’s Second Decision was concerned, the Board also determined that it was fair to dispose of the appeal on paper without an oral hearing [9]-[14]. In its decision dated 25 February 2019, the Board found that, as the BOR 2 risk related to the death sentence and genocide, which the Board found to be irrelevant to the applicant’s claim. Since the applicant did not file additional evidence, his claim under BOR 2 risk also failed [16] (the “Board’s Second Decision”). In this premise, the applicant’s appeal against the Director’s Second Decision was also dismissed.

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

13.The applicant has filed Form 86 dated 26 March 2019 for leave to apply for judicial review of the Board’s Second Decision.

14.In his statement attached to Form 86 in support of his application, the has raised the grounds below. As the application should only refer to the Board, his reference to the Director will also be considered in relation to the Board.

(1)  The Board failed to consider state acquiescence.

(2)  The Board did not give him the chance to arrange relevant evidence, bearing in mind that he was in custody at the immigration detention centre

(3)  He was tortured at the behest of and in full collusion of the police and the state law enforcement agencies as well as those in the high ups of the political circles.

(4)  The state should be liable to the applicant for failing to provide reasonable protection to him.

(5)  The Board did not give sufficient weight to his argument, in particular, his evidence that the state is unable to provide protection to him.

(6)  The Board referred to the COI. But it had its pre-conceived conclusion and it is unfair to him. In fact, corruption and incompetence of the administration in his country is still a very serious problem.

(7)  The Board had failed to attained high standards of fairness in the dealing of his application.

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. Before me, the applicant said that the Board was wrong because it did not consider his case properly and his problems in Pakistan.

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 had considered the Board’s First Decision, which deals with the main facts of the applicant’s claim. It had also considered the additional facts raised by the applicant. It had come to its conclusion to dismiss the applicant’s appeal against the Director’s Second Decision.

19.As to the grounds set out in paragraph 14, supra, the allegations as claimed by the applicant do not involve the issue of state acquiescence; he did not ask for time from the Board for the preparation of his appeal; there is no evidence or allegation that he was tortured by police; the Board had considered his submission of incompetency or corruption of police officer of Pakistan, but the Board had also taken into consideration the COI that state protection was available and the government of Pakistan is fine-tuning on the laws or policy, see paragraph 32 of the Board’s Decision. The other grounds are only the applicant’s personal opinions or comments without any evidence in support. All of his grounds therefore fail.

20.The applicant is unable to raise any valid ground to challenge the Board’s Second Decision.

21.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

22.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss his application.

Dated the 23^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