Case Document

100%Judiciary

HCAL 1223/2019

[2023] HKCFI 2667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1223 of 2019

BETWEEN
	Hussain Shah Mamraiz	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative 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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 29 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“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 29 January 2016 and was arrested by the police on the same date. On 31 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 Mir Asfar Shah and Asif Khan due to a land dispute.

5.In brevity, the land dispute originated from Asif’s demand of the applicant’s return of the subject land. The applicant claimed that his grandfather purchased the subject land from Asif’s grandfather but Asif denied the existence of the said transaction. He had, through Mir, asked the applicant to return the said land in August or September 2015, saying that the applicant’s grandfather never paid the purchase price. A month later, the Patwari, a land record office, stated that the subject land belonged to Asif. Later, the Patwari and Mir attempted to demarcate the applicant’s land. They were stopped by the applicant. In October or November 2015, the Patwari again tried to demarcate the land. The applicant and his elder brother had a heated argument with the Patwari. They even showed the Patwari the land document but were told that they couldn’t do anything about it as Asif was rich and influential. Thereafter, the applicant, through his lawyer, filed a claim against Asif over the subject land. Since then, he had been receiving death threats from Mir. As a result, he decided to seek protection in Hong Kong. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 15 November 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 past ill-treatments were of low intensity and frequency [11]; (ii) there were no physical attacks on the applicant and Asif and Mir did not possess any intention to seriously harm or kill him [12]-[13]; (iii) state protection would be available to him [14]-[20]; and (iv) internal relocation was a viable option [21]-[25].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 9 November 2018, the Board conducted an oral hearing for his appeal [18].

9.Having considered the evidence, the Board found that the applicant’s claimed risk of harm was unconvincing and devoid of credibility [35]. While it was plausible that the applicant had a land dispute, the Board refused to accept its severity as claimed [36]. The Board also found that his assertions of the past events were bare and unsupported by any evidence [38]. It therefore rejected the applicant’s claimed past events and the existence of death threats from Mir [40]. Meanwhile, it found that the applicant was never physically assaulted [40]. Besides, the threats failed to attain a minimum level of severity [41]. In addition, the Board considered the country of origin information and concluded that internal relocation was a viable alternative [43]-[45].

10.For the above reasons, 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 on 7 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of this application, he set out the grounds below.

(1) Irregularity of the decision-maker: no reasonable basis to reject his application; failing to consider state acquiescence; failing to investigate into the country of origin information (“COI”); failing to place weight to relevant information or placing weight on irrelevant COI; failing to consider consistent system of human right violation; failing to consider if state protection is available in Pakistan;

(2) Procedural impropriety: failing to call for psychological and/or psychiatric reports and evaluations; applying the incorrect standard of proof; no reasonable basis for rejecting his application; the adjudicator was a different person from the interviewing officer; and no proper basis for consideration of internal relocation.

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.As to his grounds in paragraph 12, supra, it is apparent that they were copied from other templates of cases unrelated to the applicant’s case. Most of them are bare assertions without any evidence in support. So far as they are related to his case, he had made no complaint on his psychologic or psychiatric conditions and did not require examination or assessment on those aspects. The adjudicator is a different person because it is a board of appeal from the decisions of the immigration officer. There is nothing amiss in this.

17.The Board, for the reasons it had given in the Board’s Decision, did not accept the facts in support of his claim. See paragraph 9 above. In other words, there is no factual background in support of the applicant’s claim. There is no valid ground from the applicant 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 for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 2^nd day of November 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 2/11/2023 Hussain Shah Mamraiz 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 2/11/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9286/17/11/297/P1822 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2633/17 (Formerly RBCZ/10688/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)