Anees-ur-rehman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1192/2019

[2023] HKCFI 2981

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1192 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 Notice of Decision of the Director dated 26 June 2018 (“the Director’s Decision”) and 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.As the Director’s Decision had been appealed to the Board and the Board had dealt with his appeal by way of the Board’s Decision, it is not open for the applicant to apply for leave for judicial review of the Director’s Decision and his application is dismissed in limine[1].

3.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing was fixed for him on 27 March 2023. However, he was absent on the hearing date. Therefore, his application is dealt with on the papers.

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 10 May 2016.  On 18 May 2016, he surrendered to the Immigration Department.  On 21 July 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Raza Khan (“R”) and Wasim (“W”).

6.In short, the applicant had an affair with a married woman in 2013.  In around September 2015, their affair was discovered by R, who was the relative of the girlfriend’s husband.  Two weeks later, the applicant and his girlfriend encountered R and W on the street.  His girlfriend told him that her family intended to kill him upon knowing the affair.  Out of fear, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of 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) the low frequency of past ill-treatments indicated an unlikelihood of future risk of harm [11]-[13]; (ii) state protection would be available to him [14]-[18]; and (iii) internal relocation was also a viable option [19]-[22]. 

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  The oral hearing for his appeal was scheduled on 28 November 2018 but adjourned due to the applicant’s health condition.  The hearing was resumed on 18 February 2019, during which the applicant answered the Board’s inquiries [11]; [14].

10.Having considered the claim, the Board found that the applicant only made bare assertions and the reliability and authenticity could not be tested nor supported [77].  In particular, the Board noted that the applicant produced no evidence to prove that he was unable to live elsewhere if refouled; that R and W no longer had adverse interest in the applicant; that they had no inflicted physical harms on the applicant after he returned in September 2015; that the alleged threats from R and W were based on hearsay information; that when the applicant hid in his house nothing eventful happened; that he had no difficulties in leaving Pakistan; and that there was no evidence of police inaction or lack of police protection [79]-[91].  

11.In any event, state protection and internal relocation were both available to the applicant [92]-[116].

12.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

13.The applicant has filed Form 86 dated 3 May 2019 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation and in support of his application, the applicant enclosed a copy of the Board’s Decision without raising any specific ground.

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.

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 found that the applicant had failed to show that he might not be able to relocate internally and further that COI showed that state protection and internal relocation would be the viable options for him. There is no valid ground from the applicant to challenge the Board’s Decision.

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 30^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