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

HCAL 1644/2019

[2024] HKCFI 1382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1644 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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 17 May 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 asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a date was fixed for him to appear before the Court on 10 April 2024. However, he was absent without prior notice to the 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, aged 28, is a Pakistani. He entered Hong Kong illegally on 28 February 2015 and was arrested by the police on 14 March 2015. The applicant made a non-refoulement claim on 17 March 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by his business partner (“Khan”) because of a money dispute.

5.According to the applicant, he and Khan started a second-hand car trading business in mid-January 2014. At the end of March 2014, the applicant looked after the showroom while Khan went to Malaysia for business. About a week later in early April 2014, a fire broke out and the whole showroom was burnt down. The applicant reported the incident to the police in the evening on the same day. He also told Khan about the incident. On the next day, Khan’s brother visited him to find out what had happened. He returned two days later and told the applicant that he needed to compensate the money Khan put into the business. Khan’s brother also threatened the applicant that he would be killed or be in trouble if he failed to pay.

6.Upon receiving the threats, the applicant relocated to live with his sister. In October 2014, he bumped into Khan while going to the market to buy grocery. Khan threatened to kill the applicant if he failed to pay his loss in full within a month. In November 2014, the applicant was attacked by 5-6 people, including Khan, who were armed with guns, pistols and wooden batons. He was kicked, slapped and assaulted by wooden batons for 5-10 minutes (“the assault”). The applicant sustained bruises and abrasions all over his body. He lost consciousness and was taken to hospital as a result. The applicant’s brother visited him and the police also took a statement from him while he was in hospital.

7.In early December 2014, Khan called the applicant and threatened him that he would not be spared given that the applicant had reported the attack to the police. Thereafter, Khan called to threaten him every other day. The applicant’s siblings therefore advised him to leave for Hong Kong. The applicant left Pakistan for Mainland China on 16 February 2015 and he sneaked into Hong Kong on 28 February 2015.

8.The applicant maintained contact with his parents and one of his brothers. He was informed by his brother that Khan would come once a week looking for him, so that he should not return to Pakistan.

9.The applicant did not follow up with the police after reporting the assault to them. Meanwhile, he considered internal relocation within Pakistan not viable because Khan was a rich and influential person, so that he could be located. In any event, Khan was still able to find him after he relocated away from his hometown and moved to his sister’s home.

10.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 29 March 2018 (“the Director’s Decision”).

The Director’s Decision

11.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.  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”).

12.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the low intensity and frequency of past ill-treatment from Khan and his brother indicated a small future risk of harm upon his return to Pakistan. His delay in lodging a non-refoulement claim also showed that he was not in imminent danger [12]-[15].

13.In any event, (i) state protection would be available to him upon his return [16]-[13](sic); (ii) internal relocation would be viable [14]-[20](sic) and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [21]-[26](sic), Persecution risk [27]-[32](sic) or Torture risk [33]-[35](sic).

The Board’s Decision

14.The applicant appealed the Director’s Decision to the Board. On 23 April 2019, the Board conducted an oral hearing.

15.The Board found that the applicant was able to elaborate on details about his business and accepted that he and Khan were business partners and that their business was burnt down because of a fire [15]. However, it did not accept that the applicant was threatened or assaulted due to the loss of business [16] because of his inconsistent evidence regarding (i) the availability of the police report and medical report [17]-[19]; (ii) the time when he last had contact with Khan [20]-[32]; (iii) the circumstance of the threats made by Khan over the phone [34]-[45] and (iv) the circumstance of the assault [46]-[55].

16.Based on such findings, the Board was of the view that the applicant had fabricated his claims. They did not accept that he was threatened or assaulted, so that he would not face a real risk of harm upon return to Pakistan [57]-[58]. The Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk [61]-[65], Torture risk [66]-[71] or BOR 2 and BOR 3 risk [72]-[75]. Furthermore, internal relocation was also available to the applicant taking into account the country of origin information [59]-[60].

17.The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

18.The applicant has filed Form 86 dated 17 June 2019 for leave to apply for judicial review of the Board’s Decision.

19.In his affirmation in support of his application, the applicant said that he is not satisfied with the Board’s Decision and his life is still in danger in his home country.

DISCUSSION

20.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

21.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

22.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.”

23.In paragraph 15, supra, the Board had stated the reasons why it did not accept the applicant’s evidence and concluded that he had fabricated his story for this application. The applicant has not been able to raise any valid ground to challenge the Board’s findings.

24.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

25.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 6^th day of June 2024

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