FAROOQ MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2483/2019

[2025] HKCFI 719

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2483 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 23 August 2019 of the Torture Claims Appeal Board dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. He appeared before the Court on 5 February 2025.

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 sneaked into Hong Kong on 5 December 2015 by speedboat and surrendered to the Immigration Department on 10 December 2015. He lodged his non-refoulement claim on 11 May 2016.

5.  The applicant’s claim was based on his fear of being harmed or killed by his paternal uncle named Ghulam and the uncle’s son Afzaal because of a property dispute. In 2011, they came to the applicant’s home and demanded them to vacate their house. The family refused and they left. They came back a few days later, again demanded the family to vacate. On this occasion, they carried with them a pistol and wooden rods. Ghulam hit the applicant’s mother with a wooden rod. She was badly injured and fell to the floor. She was taken to hospital where she died. He claimed that his father had also died because of the property dispute. The matter was reported to police, which took no action. Moreover, his brother was investigated by the police because Ghulam wrongly accused of a charge and his brother was tortured by the police.

The Director’s Decision

6.  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 (“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 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 (“Persecution risk”).

7.  By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: the low intensity and frequency of ill-treatment from his uncle and uncle’s son is indicative of a small future risk of harm and no indication or evidence that they ever hurt any of his family members [12]; considering the country of origin information, state protection will be available and even though the applicant’s uncle and his son were both related to police officers, there was no evidence that state authorities could not exercise due diligence to prevent, investigate, prosecute, and punish problematic police officers, nor will the applicant be subjected to any adverse interest by the Pakistani Government if he returns to Pakistan [13-20]; and internal relocation alternatives will be viable [21-25].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 26 November 2018, the Board conducted an oral hearing for his appeal, during which the applicant confirmed that since leaving Pakistan on 21 November 2015, both the uncle and his son had bothered his father “every day”, and the applicant’s wife went to live with her parents. His father eventually became paralysed and died in 2015.

9.  Having considered the evidence, the Board found that the applicant’s uncle or his son had ample opportunities to kill or seriously injure the applicant or any member of his family if that was their intention, but in fact they did not make any attempt to seriously harm, let alone kill the applicant [31]; and further that the applicant’s sister was not harmed but only had been sworn at by the uncle, the Board formed the view that the applicant would not face any danger [34]. In any event, the Board found that the dispute of his family was personal and private, and nothing to suggest that his uncle or any other member of his family acting in an official capacity would take part in any such harm or assault against the applicant [38] and the Board was satisfied that it would not be unduly harsh for the applicant to internally relocate [37]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

10.  The applicant filed the Form 86 on 27 August 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In the applicant’s affirmation in support of his application, the applicant deposed that his life threat still exists and exhibited 5 pages containing grounds which, insofar as this case is concerned, could be summarized as follows:

(1)  He was not provided with legal and language assistance.

(2)  Procedural impropriety: the Board had unlawfully fettered its discretion; the adjudicator acted in an unfairness manner; it was unreasonable to refuse his appeal, irrational in the public law sense and it had failed to meet the greater care they owed to a self-represented clamant; lack of transparency of the Board as the Board’s Decision is not open to the public.

DISCUSSION

12.  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).

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he understood the Board’s Decision, but he said that he had submitted all his documents to the Board and that the Court should review it.

14.  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.”

15.  The grounds raised under paragraph 11 do not assist the applicant’s application. The Court of Appeal had held that the applicant is not entitled to free legal assistance at all stages of the proceedings and lack of language assistance is not a valid reason to challenge the Board’s Decision[1]. Ground (1) fails. Ground (2) are mostly the applicant’s bare assertion or opinions without any evidence in support. As to the complaint that the Board’s Decision is not open to the public, this is the policy of the government, supported by the law that the hearing was not open to the public. It may be for the protection of the applicants. In any event it is not a valid reason to challenge the Board’s Decision. Ground (2) fails too.

16.  There is no valid ground from the applicant to challenge the Board’s Decision.

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

DISPOSITION

18.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.