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

HCAL 1714/2019

[2024] HKCFI 1282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1714 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;

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 15 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 hearing date of 22 April 2024 was fixed for him to appear the Court. 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 36, is a Pakistani. He entered Hong Kong illegally on 22 May 2015 and was arrested by the police on 22 June 2015. The applicant lodged a non-refoulement claim on 24 June 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by Khadim Hussain, his son and his associates due to his refusal to change his political support from Pakistan People’s Party (“PPP”) to Pakistan Muslim League (“PML(N)”).

5.  According to the applicant, he started supporting PPP in 2012 while the majority of his villagers were associated with PML(N). On an evening in mid-2013, there was a PML(N) gathering in his village. Khadim Hussain, an influential PML(N) supporter, invited the applicant to join PML(N) and quit PPP. The applicant turned down the invitation and told Khadim Hussain that he was a dedicated PPP supporter.

6.  In late 2013, around five of Khadim Hussain’s associates armed with guns came to the applicant’s grocery shop while he was away. They enquired the applicant’s father for the applicant’s whereabouts and threatened to kill the applicant because he refused to join PML(N).

7.  In February 2014, Khadim Hussain together with 8-9 of his associates armed with wooden rods, sticks and guns came to the applicant’s shop again while he was alone. Upon the applicant’s refusal to join PML(N), Khadim Hussain’s associates beat him brutally with wooden rods and sticks. Thereafter, Khadim Hussain warned the applicant that this would be his last chance and threatened to kill him the next time if he still refused to join PML(N). As a result of the assault, the applicant suffered a fractured left knee and a dislocated right upper arm, with bruises and swellings all over his body. He sought medical assistance from a bonesetter in the village and took 2-3 months to recover. The applicant did not report the assault to the police because Khadim Hussain had threatened to harm his family if he did so.

8.  One night in June or July 2014, Khadim Hussain’s son together with 7-8 men came to the applicant’s shop while he was away. They looted the shop and shot the applicant’s father on his left hand. They left after threatening to kill the applicant. The applicant’s father attended hospital and underwent surgery to remove the bullet from his hand. He was hospitalized for around a month as a result. The applicant and his paternal cousin reported the incident to the police. 2-3 days later, Khadim Hussain’s son and 2-3 people involved in the incident were arrested. However, they were released a month later in August 2014 after bribing the police.

9.  The applicant then became worried about his safety and he took shelter in different places within his village. 2-3 months later, he fled to his friend’s place, which was about an hour by bus from his home. The applicant maintained contact with his family, who told him that Khadim Hussain was still looking for him and that he and his family would be harmed if they remained in the village.

10.  Upon advice from his friend, the applicant decided to leave Pakistan for China on 27 April 2015. Eventually, he sneaked into Hong Kong from Shenzhen on 22 May 2015. Whilst in Hong Kong, the applicant maintained contact with his parents around once a month. He was informed by his father that Khadim Hussain still often came to his house and asked for his whereabouts.

11.  The applicant considered internal relocation not viable because he could be tracked down, given that Khadim Hussain was wealthy and had extensive network throughout Pakistan. He was also of the view that he could not seek any protection from the police because they were corrupt and that he had no money to bribe them.

12.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 7 August 2017 (“the Director’s Decision”).

The Director’s Decision

13.  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”).

14.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the behaviour of Khadim Hussain showed that he had no real intention to seriously harm or kill the applicant [13]-[15]; (ii) state protection would be available to him upon his return [16]-[21]; (iii) internal relocation would be viable [22]-[26] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [27]-[32], Persecution risk [33]-[37] or Torture risk [38]-[41].

The Board’s Decision

15.  The applicant appealed the Director’s Decision to the Board. On 26 November 2018, the Board conducted an oral hearing.

16.  The Board found the applicant’s claims had been consistent in general terms [89]. However, there were significant inconsistencies in his evidence [90]-[91], regarding (i) his role in PPP [92], (ii) injuries suffered [98], (iii) number of times he was assaulted [102], (iv) injuries sustained by his father from the gunshot [104] and (v) the aftermath of the gunshot concerning the arrest and release of the perpetrators [105]-[106].

17.  The Board rejected the applicant’s claim as a PPP member or that he held the position of General Counsel in his village in 2014 [96]-[97]. It did not accept that he had been assaulted at any time and sustained injuries as a result [103]. His claims about the gunshot on his father as well as its aftermath concerning the arrest and release of the perpetrators were also not accepted [107]. Furthermore, the Board found the applicant had fabricated his claim about learning from his father in February 2018 that Khadim Hussain and other perpetrators had changed their allegiance to Pakistan Tehreek-e-Insaf (“PTI”) after it attained a majority because PTI only attained a majority after the election in July 2018 and formed a coalition government in August 2018 [108].

18.  Based on such findings, the Board was of the view that the applicant would not face a real or substantial risk of being harmed or killed upon return to Pakistan [112]. There was also no credible evidence that he would be refused state protection or that he would still be unsafe upon internal relocation [113]. The Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, Persecution risk or BOR 2 and BOR 3 risk [115]-[131].

19.  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

20.  The applicant has filed Form 86 dated 21 June 2019 for leave to apply for judicial review of the Board’s Decision.

21.  In his affirmation in support of his application, the applicant said that he is not satisfied with the Board’s Decision and that life is still dangerous if he returns to his country.

DISCUSSION

22.  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).

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

24.  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.”

25.  Although the Board accepted the applicant’s evidence on general terms, it rejected his evidence on the main facts in support of his claim, i.e. he and his father were tortured by Khadim Hossain and his people, which is the main reason for he to flee Pakistan for Hong Kong. The Board also found that state protection and internal relocation are available to the applicant.

26.  The applicant has raised no valid reason to challenge the Board’s finding of the facts. There is no reason that this Court should interfere with the Board’s Decision.

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

CONCLUSION

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

29.  The applicant filed an affirmation dated 19 April 2024 to apply to withdraw his application, saying that he has no problem in his country. Since this Court has already assessed the merits of his claim and dismissed his application, his application for withdrawal of his claim is irrelevant.

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