QASIER MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

HCAL 1344/2019 [2024] HKCFI 938 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1344 of 2019 BETWEEN Qasier Muhammad 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. Observations for the Applicant: THE APPLICATION 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”). 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. 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 The applicant is a national of Pakistan. He surrendered to the Immigration Department on 20 June 2016 and it was revealed that he had illegally entered Hong Kong via Mainland China on 30 May 2016. He lodged a claim for non-refoulement protection on 3 August 2016 on the basis that he would be harmed or killed by Chaudhary Nawaz (“Nawaz”) and the People of Pakistan Muslim League (N) (“PML(N)”) as he allegedly witnessed a shooting incident. In brevity, the applicant claimed that he had witness members of the PML(N) were shooting at four unknown people whilst he was working in his salon in around 2012. Two people were dead as a result of the shooting. In his written record before the Director, he stated that the shooters targeted him for helping those unknown people but during his interview, this was changed to simply witnessing the incident and no assistance was given to those unknown individuals. Thereafter, the applicant was approached by the police one day in 2013 to assist with the alleged shooting incident. He declined and fled immediately to an acquaintance’s home as he feared the PML(N) must have bribed the police to frame him for the murder. After hiding for one year, he further relocated to Lahore and hid there for about two years. Throughout this time in hiding, he did not encounter any danger nor physical harm from the PML(N) or Nawaz. In 2016, he decided it was impossible to hid forever and make arrangements to leave Pakistan. Details of his claim are set out at [8] of the Notice of Decision dated 28 December 2017 by the Director (the “Director’s Decision”). The Director’s Decision The Director considered the applicant’s claim in relation to the following risks: risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); 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”); 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 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”). By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that: (i) the feared treatment is unlikely to materialize as it was the applicant’s own speculation that the PML(N) had bribed the police [14.1]; (ii) there was nothing to suggest that the PML(N) or Nawaz continued to search for him, which was evidenced from the absence of harm while he was in hiding between 2013 to 2016 [14.2]; (iii) state protection was available [15] – [20.1]; and (iv) internal relocation alternatives were also available and reasonable [21] – [23]. The Board’s Decision The applicant appealed the Director’s Decision to the Board. On 11 October 2018, the Board conducted an oral hearing for his appeal, during which he elected to give evidence. The Board recapped the applicant’s claim and reminded itself of the relevant legal principles relating to non-refoulement protection [1] – [17]. In essence, the Board found the entire facts put forward by the applicant to be confusing and contradictory [36]. He could not give any credible explanation as to why the PML(N) would single him out as a member of the PML(Q) notwithstanding he was not an office-holder nor anyone of importance within the party [37]. He was further unable to provide any documents in support that the police were going to charge him for the murder [39] and [40]. He simply failed to establish the factual basis of his claim that he will be harmed or killed by “Nawaz” and the PML(N) [42] and [43], which resulted in the Board’s conclusion that he did not give truthful evidence [44]. In assessing the relevant grounds of non-refoulement protection, the Board found the applicant had failed to establish there would be a real risk of torture or persecution if refouled based on its findings above [44]. Based on objective and credible COI, the Board also held there was sufficient assistance from the Pakistani police if he was targeted by the PML(N) [45] – [47]. The Board lastly found there was adequate options for internal relocation as he was able to live in Lahore for two years without incident [48]; and such course of action would not be unduly harsh for him given his working experience and relatively young age [49]. As a result, the Board dismissed his appeal and the Director’s Decision was confirmed. Application for leave to apply for judicial review of the Board’s Decision The applicant has filed Form 86 on 20 May 2019 for leave to apply for judicial review of the Board’s Decision. In his affimation in support of his application, the applicant raised the points below: no reason basis for rejecting his credibility; failure to consider state acquiescence; failure to consider the COI reports; the decision-maker is not the interviewer; cherry-picking the COI; failure to consider the system of persistent violation of human rights; failure to call for psychological and/or psychiatric report; and no proper basis for consideration of internal relocation. DISCUSSION 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). The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. 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.” The Board, for the reasons given in paragraphs 9 & 10 above, found that the applicant’s evidence was not acceptable and his claimed risks were unfounded. Those grounds in paragraph 13 are not valid to challenge the Board’s Decision as they are his opinions without any evidence in support and some of them are not even relevant such as ground (2), (4) and (7). The applicant fails to show that he has any realistic prospect of success in his proposed judicial review. CONCLUSION 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 11th day of April 2024 (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 11/4/2024 Qasier 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 11/4/2024 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9834/18/1/107/P1894 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2999/17 (formerly RBCZ 12923/16)[T6 S135] Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) Form CALL-1