Hamza Amir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1226/2019

[2023] HKCFI 2712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1226 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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 25 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 20 February 2016 and was arrested by the police on the same date. On 22 February 2016, he lodged a non-refoulement claim. The basis of his claim was on a risk of harm, if refouled, from members of the Pakistan Muslim League (N) (“PML(N)”) who were involved in a murder which he witnessed.

5.According to the applicant, he witnessed a murder of a man belonging to the Pakistan Terhreek-e-Insaf (“PTI”) by two PML(N) members. Upon seeing the shooting, he immediately closed his shop and ran away. The next day, the police started investigating the murder and found the applicant. He informed the police about the PML(N) members. Thereafter, members of the PML(N) came to the applicant and threatened to kill him if he exposed their fellow members. On the other hand, the PTI members also visited the applicant and asked him to testify in court. Upon knowing the PTI’s visit, the PML(N) members again posed death threats if the applicant complied with PTI’s request. Feared of the death threats, the applicant escaped to Mirpur.

6.In early December 2015, the applicant was intercepted by two or three PTI members in Mirpur. They pointed a gun at him and forced him to give evidence in court. Yet, their vehicle was intercepted by the PML(N) members. Gun fires were exchanged but luckily no one was hurt. The applicant was sent to his home by the PTI members. The same evening, the PML(N) members visited the applicant and again threatened to kill him if he testified or refused to leave the home village. As he realized that the PTI would not protect him, the applicant decided to flee the home country. Eventually, the applicant escaped to Hong Kong. He learnt from his family that the two parties were still looking for him. Thus, he decided to seek protection in Hong Kong. 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

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 Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) his claimed fear of harm from the PMLN or the PTI supporters was groundless [14]-[16]; (ii) state protection would be available to him [17]-[23]; and (iii) internal relocation was a viable option [24]-[25].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 19 September 2018, the Board conducted an oral hearing for his appeal.

10.Having considered the evidence, the Board made the following findings. It noted that the applicant’s claimed risk of harm only arose if he was required to give evidence in the criminal trial against the two PLM(N) members [20]. Yet, it also noted that the Pakistani police, on the applicant’ evidence, was not keen on pursing these two suspects [21]-[22]. Meanwhile, the applicant conceded that he did not have knowledge about the current status of the case [21]. In addition, the applicant’s evidence about the identification of the two suspects was vague, which it was doubtful that the Pakistani court would accept it. Besides, the applicant failed to produce any documents to show that he was notified to attend the court to give testimonies [24]-[25]. As a result, the Board found that there was little prospect that the two suspects would be indicted for murder and thus there was unlikely to have a trial which the applicant would be required to give evidence [26]. In any event, the Board found that the dispute between the applicant and the two parties was a private one without any kinds of state involvement [28] and internal relocation was not unduly harsh for the applicant [29].

11.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

12.The applicant has filed Form 86 dated 7 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of this application, he did not set out any specific ground.

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, for the reasons it had given in the Board’s Decision, did not accept that the applicant will have real risk of being harm or killed if he returns to his country. 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 7^th day of November 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