MIR AWAIS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3659/2019

[2025] HKCFI 1420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3659 of 2019

  Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court

1.   Form 86 be amended, naming the Director of Immigration as the Putative Interested Party.

2.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 9 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 29 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 29 October 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

2.  On my own motion, I have amended Form 86, correctly naming the Director rather than the Board as the proposed interested party.

Background

3.  The material facts of this case, including the Applicant’s personal background, the incidents relied to allege that he would be ill-treated or even killed in Pakistan, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision.  It is not necessary to repeat them all over again.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1].  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions herein.

Intended Grounds

4.  I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success: see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676.

5.  The Applicant has raised, in his supporting affirmation, the following grounds (collectively, “the Intended Grounds”):

(1)   “Procedural Impropriety) Failure to properly apply para 2 of the UN committee against Torture General Comment No.2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, cf, the TCAB and the Director Decision which focused on whether such reliefs showed merely signs of positive improvement (see also JKF CACV 103 / 2014).” (Ground 1)

(2)   “Procedural Impropriety) Failure to conduct sufficient inquiry into the relevant country of origin conditions. [T]he TCAB Failure to consider that I would face serious risk from the loan creditor organisation who will harm me because of failing to repay the de[b]t, it’s a serious matter for which he would definitely harm me upon refoulement” (Ground 2)

(3)   “Procedural Impropriety/ Irrationality) Failure to reasons for assessment of Lack of BOR 3 risk and/ or sufficient basis to support conclusion of lack of BOR 3 risk.” (Ground 3)

(4)   “Error/ Misdirection in law) Failing to take into account the considerations of psychological strain and threats to me personally or threats to me directly to kill me.” (Ground 4)

(5)   “Procedural Impropriety) The TCAB Failure to consider our fear that my enemies still fear for me, I could not repay the loan in this circumstance, therefore there are genuine risk awaiting for me, and I could not relocate other places because they could easily trace me wherever [I] hide in my country.” (Ground 5)

(6)   “No sufficient basis to conclude that I and my family members would not to be at risk of being subjected to torture and or/ CIDTP upon refoul[e]ment.” (Ground 6)

(7)   “Failing to conduct an oral hearing for my Appeal/ Petition” (Ground 7)

6.  It appears that the Intended Grounds have been copied by the Applicant from some standard template, and none of them is meritorious or has any substance in this case. 

Board’s findings and reasons

7.  I have considered the Board’s Decision with rigorous examination and anxious scrutiny, applying an enhanced standard as required by law owing to the seriousness of the issues at hand.  I am satisfied that the Board had correctly set out the burden of proof and standard of proof, the law and key legal principles relating to the Grounds under the USM, and observed a very high standard of fairness. 

8.  The Board made the following findings of facts after going through all the evidence adduced by the Applicant and applying the relevant law and legal principles relating to the issues and the Grounds (see §§ 50-56 of the Board’s Decision):

(1)   There was no reliable evidence to show the existence of the Accident and the Car Damage Event.  Even if there were disputes between the Applicant and Siddique, those were private disputes only and there had never been any ill-treatment by Siddique on the Applicant at all.  Those threats fell short of the required level of a genuine and substantial risk.

(2)   Siddique was not a public official relating to the state of Pakistan.  He was a non-state actor.  No public official, or persons able to wield the authority of the government and/or state had any connection with this claim.

(3)   There was no evidence showing that Siddique had ill-treated the Appellant with an intention listed in the definition of torture.  The alleged ill-treatment, if any, had no relevance to the interest and/or benefit of the government of Pakistan.

(4)   There was no, or no reliable evidence that the Applicant had a well-founded fear of persecution.

(5)   The state of Pakistan was not unwilling or unable to afford protection to the Applicant.  The government of Pakistan was not unwilling to help him for a Convention reason, or for any other reason.  He had conceded that he did not report the Car Damage Event to other authorities or the police at a higher level when the local police had refused to accept his case against Siddique.

9.  Applying these findings to the individual grounds, the Board concluded that:

(1)   There was nothing before the Board to indicate that, if returned, the Applicant would not be afforded the requisite level of protection from the government of Pakistan.  The Board found that he could not, on the facts, bring himself within any of the grounds enumerated in the definition of “refugee” (see §64 of the Board’s Decision).

(2)   From the COI materials and all other relevant evidence, there was nothing before the Board to indicate that the Appellant would be at risk of harm contrary to BOR 2 (see §69 of the Board’s Decision).

(3)   It could not be shown that the government in Pakistan failed to provide reasonable protection to the Applicant from the ill-treatments by Siddique (if any) to establish a breach of BOR 3 (see §76 of the Board’s Decision).

(4)   The Applicant had failed to show that the elements in the definition of torture were satisfied.  Siddique was not a public official or other person acting in an official capacity.  It was not shown that there was acquiescence or failure of due diligence of a public official or other person acting in an official capacity.

Discussion

10.  The assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation were primarily within the province of the Board.  It was entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  It is well-established that the role of the Court in a judicial review is not to provide a further avenue of appeal: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524, etc.

11.  The Applicant has not shown any error of law, procedural unfairness, or irrationality in the Board’s Decision for the Court to intervene by way of judicial review.  None of the Intended Grounds discloses any valid public law grounds.  In the absence of them, the Applicant cannot re-open the Board’s findings simply because he disagrees with the Board that it was safe for him to return to his home country.

12.  Ground 1 appears to be related to the Board’s findings based on the COI materials.  The Applicant has failed to identify the “reforms and means of relief” mentioned by him, nor has he provided sufficient particulars of them or adequately elaborated as to how they would apply to his case or in what way the Board had failed to consider them properly or to apply high standards of fairness in the assessment and the determination of his non-refoulement claim. 

13.  On the other hand, as can be seen from the Board’s Decision, the Board had adequately considered the Applicant’s case, the issue of risk and threat, as well as the relevant COI materials, etc. before making its findings.  There is absolutely no substance in Grounds 2, 4 and 6 complaining that the Board had failed to conduct sufficient inquiry or consider these matters. 

14.  Ground 3 clearly flies in the face of the parts in the Board’s Decision dedicated to the assessment of the lack of BOR 3 risk (see §§44, 70-76, 90), and must be rejected. 

15.  Ground 5 is equally unmeritorious.  The Board had reached the view that it would not be unduly harsh for the Applicant to live anywhere in Pakistan after considering that he was able-bodied with no health issues and had years of working experiences in Pakistan.  It was not suggested that he would not be able to re-establish himself in his home state or elsewhere in Pakistan.  He accepted that Siddique’s search for him was at the level of his home village only, instead of on a nation-wide level (see §§86-87 of the Board’s Decision).  I repeat that the assessment of viability of internal relocation was primarily within the province of the Board and the Court would not intervene in the absence of valid public law grounds.  

16.  Ground 7 must also be rejected, taking into account the Board’s reasons highlighted above.  The Board was astute of the Court of Appeal’s decision in ST v Betty Kwan & Ors [2014] 4 HKLRD 277.  It nevertheless took the view, after reading the papers in this case, that based on the evidence submitted by the Applicant, even accepting that those events did occur, the facts as presented as a whole was insufficient to show that he would have foreseeable, present and real risk of torture if returned to Pakistan.  In view of this, following the principles set out in that case, the Board decided that it was satisfied that the appeal could be justly determined without a hearing, and as such, no oral hearing was required.

17.  I also note that the Applicant has not identified, in support of this Ground, what were the submissions that he would have made at an oral hearing and how they would impact on the assessment by the Board. 

Conclusion

18.  For these reasons, I make an order that Form 86 be amended as described above and the Leave Application be dismissed.

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