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

Case No.HCAL 952/2019[2023] HKCFI 2474

Court

High Court CFI

Date05 Oct 2023

Judge—

Case Document

100%Judiciary

HCAL 952/2019

[2023] HKCFI 2474

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 952 of 2019

BETWEEN
	Waris Muhammad	Applicant
	and
	Torture Claims Appeal Board/	Putative
	Non-refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

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 25 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him to take place on 30 January 2023. However, he was absent without prior notice to the Court, 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 8 November 2008 and was arrested by the police for being an illegal immigration on 13 November 2008. On 16 November 2008, he raised a torture claim, which was rejected on 13 November 2013. On 15 November 2013, he lodged a non-refoulement claim. His claim was thus assessed on all applicable grounds other than that on torture risk[1]. The applicant’s claimed risk of harm was from his cousin Zulfiqar, who was associated with Pakistan Muslim League Qaaf (“PMLQ”) and Pakistan Muslim League Nawaz (“PMLN”), due to a land dispute.

5.According to the applicant, his father and Zulfiqar’s father equally shared the family land. After his father and uncle passed away, the applicant inherited part of the family land together with his siblings whilst Zulfiqar inherited his uncle’s land. Sometime before 2008, Zulfiqar sold his portion but continued to live in the same village. One day in early 2008, Zulfiqar visited the applicant’s house, demanding his family to move out. The applicant and Zulfiqar got into a fight, during which the applicant broke Zulfiqar’s left arm with bare hands. After the fight, the applicant escaped to Peshawar city where he lived worry-free for around five to six months.

6.Later, the applicant returned to Gujrat. Upon knowing the applicant’s return, Zulfiqar came to find the applicant, armed with pistols and guns, with eight unknown men. Seeing them approaching, the applicant hid in the wardrobe. Unable to find the applicant, Zulfiqar fired the gun at the sky and left. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 9 of the Notice of Decision dated 5 June 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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 Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the past events indicated that the applicant’s claimed risk of harm was groundless [17]-[25]; (ii) state protection would be available to him [26]-[29]; and (iii) internal relocation was a viable option [30]-[34].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 28 January 2019, the Board conducted an oral hearing for his appeal, during which he testified [7].

10.The Board recapped the applicant’s claim and his personal background, as well as his oral testimonies [8]-[52]. Having considered the evidence, the Board found that there were significant discrepancies in his claim that undermined his credibility [54]. In particular, the Board found that the applicant provided numerous variations about the incidents after his fight with Zulfiqar, which he was unable to reconcile with the inconsistencies [55]-[56]; that he was unable to provide satisfactory answers to the inconsistencies of the key events in his claim [57]; that there were major unexplained discrepancies concerning his claimed ownership of the disputed land [58]-[59]; and that his claimed influence of Zulfiqar was inconsistent with the country of origin information (“COI”) [60]. As a result, the Board refused to accept the applicant’s evidence.

11.For the above reasons, 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

12.The applicant has filed Form 86 dated 9 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.There is an attachment to Form 86, in which he set out his grounds as follows.

(1)  The Board’s Decision is unfair and unreasonable as life to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights.

(2)  He was not given sufficient time and chance to arrange relevant evidence for his claim.

(3)  The Board had not appreciated state acquiescence as he was tortured at the behest of the state law enforcement agencies as well as those in the high ups of political circles and the state should be liable for failing provide safety for its citizens.

(4)  The Board did not take on board the COI that are to his favour and the fact that the Director had not considered the COI that the corruption and incompetence of the administration of his country is a very serious problem. It had not given weight to reports compiled by various human rights organizations on these matters.

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.Ground (1) and ground (4) are his bare assertions without evidence or specific detail. Ground (2) should have been dealt with by the Board as he had appeared before it. There was no complaint before the Board. Ground (3) is not the fact he had told the immigration officer at the screening stage. The dispute between him and his cousin Zulfiqar was over land and the state was not involved.

18.The Board had, for the reasons given in paragraph 10, supra, rejected his evidence. There is not valid reason from the applicant to challenge the Board’s Decision.

19.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.

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

CONCLUSION

21.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 5^th day of October 2023

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 5/10/2023 Waris Muhammad Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 5/10/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 12065/18/6/244/P2341 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1355/18 (Formerly RBCZ 2002086/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)