FEROZI SYED MURTAZA SHAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2177/2019

[2024] HKCFI 3308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2177 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 1 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”). Time for the applicant to file Form 86 expired on 1 July 2019. The applicant filed his Form 86 on 31 July 2019. His application is late for 28 days. I shall deal with this issue below.

2.  The applicant asked for a hearing. However, he was absent at the hearing on 6 November 2024. 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 37, is a Pakistani. He entered Hong Kong illegally on 21 May 2013 and was arrested by the police on the same day. He was arrested again on 20 February 2014 for taking up employment while being a person in respect of whom a removal order was in force and was sentenced to imprisonment of 19 months on 2 May 2014. The applicant made a non-refoulement claim on 21 July 2014. The claim was made on the basis that, if refouled, he would be harmed or even killed by members of Pakistan Peoples Party (“PPP”), Qaumi Awami Tehreek (“QAT”), Pakistan Muslim League (Nawaz) (“PML(N)”) and the Taliban because of his affiliation with Muttahida Quami Movement (“MQM”). He also worried to be targeted by MQM and the police because the former considered him a traitor to the party given his departure from Pakistan, while the latter would arrest him because he jumped bail.

5.  According to the applicant, he started working as a volunteer for Pakistan Peoples Party (Shaheed Bhutto) (“PPP-SB”) in 2000. In the evening of 25 October 2006, the applicant was shot by two assailants whom he suspected to be members of QAT. In mid-2007, a group associated with Taliban assassinated his close friend in PPP-SB and took over the office of PPP-SB. Feeling disappointed with PPP-SB’s inability to take back their office, he became a MQM supporter in early 2008. In September 2008 and March 2010, the applicant was arrested and detained due to false accusations made against him, during which he was assaulted by the police. He believed that the accusations were made by Awami National Party (“ANP”) in order to diminish the political influence of MQM.

6.  In January 2011, shortly after the applicant and three other MQM members rejected joining the PPP Aman Committee, they were arrested for murder, assaulting police officers and possession of illegal firearms. During his detention, the applicant was again ill-treated by the police. He also met a senior leader of Taliban, who threatened him to work for Taliban. Around a month after the applicant was released on bail, he was abducted by a senior superintendent (“the senior superintendent”), who demanded him to provide information about the inside dealings planned by the prisoners inside the jail and to assist in arresting senior leaders of the MQM. Thereafter, he changed his mobile number and went into hiding for 2 months. In March 2013, the applicant left Pakistan and went to Afghanistan. He however returned after 2 months as he did not feel safe. On 4 May 2013, the applicant left Pakistan for China and eventually sneaked into Hong Kong on 21 May 2013.

7.  While in Hong Kong, the applicant was informed by his father not to return to Pakistan as PPP and PML(N) were searching for MQM members in order to diminish their political influence. He was of the view that he could not seek protection from the police as evidenced from the numerous false charges against him. He also considered internal relocation not viable because his political enemies would utilise their extensive network to search for him.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 19 April 2016 (“the Director’s 1^st Decision”).

The Director’s Decisions

9.  The Director considered the applicant’s claim in relation to the following risks:

a. 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”);

b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c. 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”); and

d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

10.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim on BOR 3 risk, Torture risk and Persecution risk. The Director found that (i) the claimed threats from QAT and ANP should have dissipated given the lapse of time [13]-[14]; (ii) there was no evidence apart from hearsay that the applicant was targeted by PPP and PML(N) [15]; (iii) there was no indication that the Taliban and the senior superintendent had continuous adverse interest against the applicant [16], [19]; (iv) the feared harm from MQM was merely his speculation [17]; (v) the misconduct of individual police officers could not represent the stance of the whole Pakistani police force [18]; (vi) the applicant’s trouble-free departure from Pakistan to China indicated that he was not targeted by the police and in any event avoiding the due process of the law is not a valid ground for non-refoulement claim [20]-[21]; (vii) state protection would be available [22]-[25] and (viii) internal relocation would be viable [26]-[30].

11.  In the Notice of Further Decision dated 15 February 2017, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return.

The Board’s Decision

12.  The applicant appealed the Director’s 1^st and 2^nd Decisions to the Board. On 20 March 2017, the Board conducted an oral hearing.

13.  The Board did not accept that the applicant would be seriously harmed or killed due to his affiliation with MQM upon his return to Pakistan [61]. The Board observed that he had only been attacked once by gunshot in 2006 supposedly by QAT, but such threat should have ceased due to the lapse of time [62]-[63]. As to the claimed fear from Taliban, the applicant received no direct threat from them aside from its senior leader when he was remanded in custody [64]. Meanwhile, there was also no evidence apart from hearsay that the applicant was targeted by PPP and PML(N) [65] and that the claimed threat from MQM was merely his speculation [66].

14.  Regarding the claimed brutal treatments when he was detained, the Board found it doubtful given his failure to make any complaint to the judge when being brought to Court [69]-[71]. His fear of arrest due to jumping bail was also in doubt in light of his uneventful departure from Pakistan for China on 4 May 2013. In any event, avoiding the due process of the law is not a valid ground for non-refoulement claim [72]-[75].

15.  The Board found the applicant’s claim was based on bare assertions/speculation and it was not accepted that he would be face any risk of harm upon return to Pakistan [76]-[79]. Furthermore, the country of origin information indicated a functioning judicial system in Pakistan [80]-[82] and that internal relocation would also be available [83]-[85].

16.  Based on such findings, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [47]-[55], [86]-[91]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s 1^st and 2^nd Decisions.

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

17.  The applicant has filed Form 86 dated 31 July 2019 for leave to apply for judicial review of the Board’s Decision.

18.  In the affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

19.  As mentioned in paragraph 2, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

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.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. It is clear that the Board had conducted a rather comprehensive consideration of the issues in the applicant’s claim. The Court finds nothing amiss in the Board’s Decision.

24.  There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

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