HCAL 871/2019
[2023] HKCFI 239
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 871 of 2019
| BETWEEN | | |
| Ammar Abdlmoeen Hussein Ibrahim | 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;
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 28 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.
The applicant
4. The applicant is a national of Jordan. He entered Hong Kong as a visitor on 8 August 2017 and was permitted to stay until 7 September 2017. On 19 August 2017, he left Hong Kong for Korea. On 17 September 2017, he returned to Hong Kong and was allowed to stay until 17 October 2017. He did not depart and had overstayed since 18 October 2017. On 15 November 2017, he was arrested by the police for overstaying. On 2 October 2018, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the family members of his ex-wife, and the Jordanian people and authorities.
5. According to the applicant, he and his family had been living in Jordan as Pakistani refugees. Since 1970s, there had been conflicts between the Jordanians and the Pakistani refugees, leading to the discrimination and killings against the Pakistani refugees. In the applicant’s own experience, when he was around 18 years old and 25 years old, he was twice detained in a prison for participating in a demonstration for Jerusalem. He was ill-treated on both occasions. In 2010, the applicant met his ex-wife and they decided to get married in 2011. However, his ex-wife’s family belonged to a powerful tribe called Ledwan which was known for killing the Pakistanis in the 70s. On the date of the wedding, the applicant was attacked by her family and some tribe members. After the applicant was discharged from the hospital, he returned to the refugee camp and nothing eventful happened until November 2013. His ex-wife was also detained by her family. She had sought help from the police who refused as it was a shame to marry a Pakistani.
6. One day in 2013, the applicant was attacked by four unknown men. His complaint to the police was again of no avail. Since then, the applicant had noticed some strangers around his camp who were shouting threats.
7. In 2016, the applicant developed an affair with his ex-wife’s sister, which was later found out by his ex-wife. Shortly after, he saw that the ex-wife’s family came to search for him, and also took away the sister. Feared of the consequence, the applicant escaped to Az-Aarqa city and nothing eventful happened for six months. Yet, one day, he was almost run over by a vehicle. Believed that he saw his ex-wife’s brother on the driving seat, the applicant decided to flee to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 10 December 2018 by the Director (the “Director’s Decision”).
The Director’s Decision
8. 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”).
9. By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that the level of risk of harm upon his refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity and low frequency of past ill-treatments from his ex-wife’s family indicated an unlikelihood of future risk of harm [12]-[16]; (ii) his credibility was in doubt [17]; (iii) state protection would be available to him [18]-[20]; and (iv) internal relocation was a viable option [21]-[27].
The Board’s Decision
10. The applicant appealed the Director’s Decision to the Board. On 21 February 2019, the Board conducted an oral hearing for his appeal, during which he testified [4]. The Board considered the new developments added to his claim [4].
11. Having considered the evidence, the Board made the following findings. There was no evidence of state involvement or state acquiescence [7]-[9]. Meanwhile, there was no evidence of severe pain and suffering which amounted to the requisite level of severity [10]. In any event, there was no evidence that these pains were inflicted by someone acting in the official capacity [11]. As a result, the Board found that the applicant’s claim under Torture risk failed [13]. In addition, the country of origin information supported a finding of the availability of internal relocation [14]-[18]. For the same reasons, the applicant’s claim on other applicable grounds also failed.
12. In passing, the Board separately concluded that the applicant’s claim was not credible [31]-[35]. Therefore, 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 29 March 2019 for leave to apply for judicial review of the Board’s Decision.
14. In his affirmation in support of his application, the applicant said he does not agree with the Board’s Decision. He cannot go back to his country because his life will be in danger there.
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 assessed the applicant’s evidence and came to its conclusion that he failed to establish his claim on the grounds as he alleged. It also did not believe his evidence. The grounds stated in paragraph 14 supra are not valid to challenge the Board’s Decision.
19. 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.
20. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
CONCLUSION
21. 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 31st day of January 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
Notesfor 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 31/1/2023
Ammar Abdlmoeen Hussein Ibrahim
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 31/1/2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14905/18/12/262/JOR8
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 4633/18 (Formerly RBCZ 10833/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1