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

HCAL 1239/2019

[2024] HKCFI 472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1239 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 present 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 12 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”).

2.  The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, the applicant appeared before the Court on 26 April 2023.

The applicant

3.  The applicant is a national of Pakistan. He entered Hong Kong as a visitor on 30 March 2003 and was permitted to stay until 13 April 2003. He did not depart and had overstayed. On 25 June 2013, he was arrested by the police for overstaying. On 28 June 2013, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by members from Pakistan Muslim League (Nawaz) (“PMLN”).

4.  According to the applicant, under his father’s influence, he became a member of the Pakistan People’s Party (“PPP”) in around 1994 or 1995. He was given the position of general secretary in his area. In around 1998, from time to time, the PMLN members would asked the applicant to quit the PPP and join their party. The applicant’s refusal often led to death threats.

5.  In around 1999, while the applicant was attending a party rally in Lahore, he was attacked by PMLN members with wooden sticks and pocket knives. He sustained injuries. After the attack, the applicant escaped to Rawalpindi. A few months later, his father informed him that his brother was kidnapped by some unknown men.

6.  Later, the applicant attempted to flee to Hong Kong for the first time. He was repatriated to Pakistan in 2000. He stayed underground and was told that the PMLN members were still looking for him. Thereafter, the applicant fled to Hong Kong again but returned in late 2000. Eventually, in 2001, the applicant decided to seek protection in Hong Kong. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 31 May 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

7.  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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the past events did not indicate a real or continuous risk of harm [12]-[13]; (ii) state protection would be available to him [14]-[20]; and (iii) internal relocation was also a viable option [21]-[27].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 12 September 2018, the Board conducted an oral hearing for his appeal.

10.  The Board recapped the applicant’s claim and his personal background [28]-[41]. Having considered the evidence, the Board found that the sustained injuries failed to attain a minimum level of severity [46];[49]; that there was no evidence that the PMLN members had the intention to seriously harm or even kill him [47]; that the threats were localized [48]; that there was no evidence of state involvement [50]-[51]; and that there was no evidence of lack of state protection [53]-[61]. In any event, internal relocation was available to the applicant [73]-[76]. In passing, the Board also noted that the political situation had changed drastically after the applicant left for Hong Kong.

11.  For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

12.  The applicant has filed Form 86 dated 8 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation and in support of his application, the applicant raised the grounds below.

(a)  He was not legally represented.

(b)  The hearing bundle was given to him a few days before the Board’s hearing. The documents are in English and he was unable to afford an interpreter. He considers that this is unfair to him.

(c)  The Board dismissed his appeal. But he was not given notice by phone though he had made such request.

(d)  The Board had relied upon the source of news which is not officially recognized or is hearsay. It had also relied upon some cases which are outdated, resulting in making groundless speculation that it is safe for him to return to his country.

(e)  BOR 2 risk was assessed without screening.

(f)  The adjudicator had not been to his country to understand his situation there.

DISCUSSION

14.  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).

15.  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 understands the Board’s Decision. He considered that the hearing before the Board was fair and he wants the Court to re-consider his claim.

16.  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.”

17.  Those grounds raised in paragraph 13 above do not assist the applicant’s application.

18.  The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

19.  The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”

20.  He did not tell the adjudicator that he did not have sufficient time to prepare for the hearing. He has confirmed before this Court that he considered that the hearing before the Board was fair. The Board is not obligated to give him notice by phone. Ground (4) is only his bare assertion without any evidence in support. Ground (5) is simply not the situation as the Director had assessed BOR 2 risk together with the other applicable risks. The screening applied to all risks concerned. See paragraph 7 above. The adjudicator may rely upon the country of origin information without going to the applicant’s country and the adjudicator had done so as according to the Board’s Decision. All of the applicant’s grounds fail.

21.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

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

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