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

HCAL 204/2022

[2024] HKCFI 2257

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 204 OF 2022

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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 25 February 2022 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. He appeared before the Court on 15 July 2024.

The applicant

3.  The applicant, aged 33, is a Pakistani. He entered Hong Kong illegally on 3 November 2019. He was arrested by the Customs and Excise Department on 27 August 2020 and was charged for an offence under Dutiable Commodities Ordinance (Cap 109) on 28 August 2020. On 9 November 2020, the applicant was further charged of an immigration offence. The applicant made a non-refoulement claim on 16 March 2021. The claim was made on the basis that, if refouled, he would be harmed or even killed by the Chaudry Khan Family (“the Chaudry group”) because he and his family were of Kashmiri ethnicity and were oppressed by the Chaudry group.

4.  According to the applicant, he and his family members were ethnic minorities in his locality. Over the years, they mistreated and oppressed the applicant’s family, which included (i) beating up the applicant’s four brothers with machetes in 1994/1995; (ii) stabbing the applicant’s uncle with long knives in 1999 after he refused to surrender his shop to them; (iii) attacking the applicant’s brother with cleavers in 2014; (iv) beating up and shooting the applicant’s cousin at his pelvis in 2015 and (v) shooting the tires of the applicant’s motorcycle when he was driving on it on 7 June 2015, causing him to fall onto the ground injuring his leg (“the 7 June 2015 incident”).

5.  Although the attacks were reported to the police and the assailants were arrested, they were released eventually, which the applicant believed was due to the political affiliations between the Chaudry group and Pakistan Muslim League (Nawaz).

6.  Upon the applicant’s discharge from hospital after the 7 June 2015 incident, he stayed at his sister’s place for three years to avoid the Chaudry group. Yet, in 2018, they discovered his whereabouts and made threatening phone calls to him. Thereafter, the applicant fled to stay with his uncle’s friend. By 2019, the Chaudry group found out his whereabouts after coercing his sister. Upon advice from his friends, the applicant decided to flee to Hong Kong to seek protection. He left Pakistan for China on 28 August 2019 and eventually sneaked into Hong Kong from Shenzhen on 3 November 2019.

7.  The applicant maintained contact with his family while in Hong Kong. They told him that the situation had worsened as his brothers were often beaten up by the Chaudry group. The applicant was of the view that he could not seek protection from the police because the Chaudry group was influential, while he was of ethnic minority. He also considered internal relocation not viable because the Chaudry group had wide connections across the country, so that they could easily locate him.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 20 August 2021 (“the Director’s Decision”).

The Director’s Decision

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 Decision, the Director dismissed the applicant’s claim. The Director had doubts towards the truthfulness of his account given the inconsistencies regarding the date and circumstances of the various attacks by the Chaudry group [14]-[19].

11.  The Director further found that in any event, (i) the low frequency and intensity of the threat and attack experienced by the applicant indicated that the risk of harm was not as imminent as he claimed [20]-[26]; (ii) state protection would be available to him [27]-[36]; (iii) internal relocation would be viable [37]-[43] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [44]-[50], Persecution risk [51]-[55] or Torture risk [56]-[59].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 7 December 2021, the Board conducted an oral hearing.

13.  The Board found the applicant failed to provide any plausible explanation for his delay in making a non-refoulement claim. The Board also reiterated the inconsistencies found by the Director regarding the date and circumstances of the various attacks. Furthermore, apart from the 7 June 2015 incident, all other assaults were on his family members rather than on the applicant and his evidence showed that he could avoid the Chaudry group by internal relocation [5].

14.  The Board considered the applicant dishonest and that he was not a genuine claimant. It was inconvincible that the applicant came to Hong Kong because of the claimed threats from the Chaudry group and that he suffered the claimed injuries. The Board was further unconvinced that the Chaudry group was chasing the applicant all over Pakistan in order to harm/kill him [56]. In any event, the claimed injury was far off from the requisite level of severity [58]-[60] and there was also no evidence of state involvement in the matter [61]-[66].

15.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [43]-[53], [69]-[87]. Furthermore, internal relocation and state protection would also be available taking into account the country of origin information [67]-[68], [88]-[92].

16.  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

17.  The applicant has filed Form 86 dated 13 April 2022 to apply for leave to apply for judicial review of the Board’s Decision.

18.  The applicant has raised his grounds in support of his application in his affirmation and a statement attached to Form 86. Those grounds are as follows. The Board had fettered its discretion, and the adjudicator acted procedurally unfair and his decisions are unreasonable, failing to meet the greater care and duty owed to the applicant in particular:

a. he was not given a fair opportunity to make oral submissions, nor was he invited to submit written submissions to the Board; and

b. the Board relied on the source of news which is not officially recognized or it is simply hearsay. The Board had also relied on some outdated cases, resulting in its speculation that it is safe for him to return to his country

DISCUSSION

19.  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).

20.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant complained that the Board did not take his evidence seriously and he asked the Court to review the Board’s Decision.

21.  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.”

22.  The Board found that the applicant was a dishonest witness and, for the reasons given, rejected his evidence.

23.  The grounds raised in paragraph 18 and before the Court do not assist the applicant’s application. He was at liberty to make oral submissions before the hearing. The Board has no statutory duty to invite him to submit written submissions. This is not required under the advanced standards of fairness as held by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, 8 June 2004. The other grounds are only his personal opinions or comments without any evidence in support.

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

CONCLUSION

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