JAMIL QAISAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2186/2019

[2024] HKCFI 3269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2186 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 17 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. 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 56, is a Pakistani. He entered Hong Kong illegally on 26 August 2015 and was arrested by the police on the same day. The applicant made a non-refoulement claim on 28 August 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by Mr Nisar and his underlings because he refused to join Pakistan Tehreek-e-Insaf (“PTI”).

5.  According to the applicant, he had been a supporter of Pakistan Muslim League (Nawaz) (“PML(N)”) since 1988. Due to the applicant’s refusal to support PTI, he was targeted by an active PTI supporter called Mr Nisar and his underlings. Between 2010 and 2013, he was detained twice due to the false cases filed against him. In 2014 and 2015, he also encountered two shooting incidents, of which he managed to escape and did not suffer any injury. Due to the continuous threats, the applicant left Pakistan for China on 17 August 2015. Eventually, he sneaked into Hong Kong from Shenzhen on 26 August 2015.

6.  The applicant maintained contact with his family while in Hong Kong and was told that Mr Nisar and his underlings were still after him. He was of the view that he could not seek protection from the police because they were corrupt. He also considered internal relocation not viable because Mr Nisar was powerful and could locate him easily through his network.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 10 April 2018 (“the Director’s Decision”).

The Director’s Decision

8.  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”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the low intensity and frequency of past ill-treatment from Mr Nisar and his underlings indicated a small future risk of harm upon his return to Pakistan [12]-[13]; (ii) the claimed risk of harm from Mr Nisar was merely his speculation [14]; (iii) state protection would be available [15] and (iv) internal relocation would be viable [16]-[20].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. The hearing was scheduled on 14 February 2019, for which the applicant failed to attend. As the applicant failed to provide an explanation for his non-attendance within 7 days, the appeal was determined in his absence [5]-[6].

11.  The Board found that the applicant had never received any ill-treatment from Mr Nisar or his underlings and there was also no evidence of any involvement from the Pakistani government in the matter [47]-[60]. Based on such findings, the Board considered that the applicant’s perceived harm from Mr Nisar was merely his speculation and rejected his claims on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [61]-[84]. In any event, internal relocation would also be available [85]-[91].

12.  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

13.  The applicant has filed Form 86 dated 1 August 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

15.  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).

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

17.  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.”

18.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision. Clearly, the Board had considered the merits of the applicant’s case.

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

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

DISPOSITION

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