ASGHAR FAIZAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1490/2019

[2024] HKCFI 1078

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1490 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 20 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, he appeared before the court.

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 28, is a Pakistani.  He entered Hong Kong illegally by boat on 13 May 2015 and he surrendered himself to the Immigration Department on 20 May 2015.  The applicant made a non-refoulement claim on 16 September 2015.  The claim was made on the basis that, if refouled, he would be harmed or even killed by the Muttahida Qaumi Movement (“MQM”) members because he had a dispute with them.

5.  According to the applicant, he had a friend who was a supporter and volunteer of MQM.  His friend was responsible for transporting MQM files around Pakistan.  One day in mid-2014, after the applicant assisted his friend to transport MQM files, senior members of MQM approached his friend, telling him that some documents were missing and accusing them of handing the missing documents to the opposition parties.  Since September 2014, the applicant and his friend had been threatened by MQM members for about 4 to 5 times over a period of 1.5 months.  On the last occasion, in November or December 2014, the applicant and his friend were assaulted by 4 to 6 MQM members with poles and sticks and were warned that they would be killed if they failed to return the missing documents.  The applicant stayed in hospital for 7 to 8 hours after the assault.  His friend was also seriously injured.

6.  Following the assault, the applicant’s father went to talk to the MQM sector in charge, but was pushed out of the office and was told that the applicant was at fault for losing the documents.  His father also approached the police, but they were reluctant to help, saying that it was a matter between the applicant and MQM.  The applicant claimed that MQM members continued to disturb him and his family after the assault.  They stationed in the vicinity of his house and confronted him twice.  There were occasions that they cut off the water and power supply of his house.

7.  The applicant believed that the only way to save his life was to leave Pakistan and he intended to sneak into Hong Kong from China to obtain protection.  The applicant and his friend both applied for a Chinese visa, but only the applicant had been granted one, while his friend failed to obtain it. Eventually the applicant left Pakistan for China on 2 May 2015 and he sneaked into Hong Kong illegally by boat on 13 May 2015. 

8.  The applicant maintained contact with his family members after he came to Hong Kong and was informed that MQM members were asking for his whereabouts. When he last contacted his family members two weeks before the screening interview on 21 December 2017, he was told that his house was under surveillance by MQM members.

9.  The applicant was of the view that it was impossible to relocate within Pakistan because he could be easily located given the extensive network of MQM and its close connection with the police.  He also considered that the police could not assist him based on their reluctance to help when his father reported the assault case to them.  There were also incidents in which MQM members bribed the police.

10.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 27 December 2017 (“the Director’s Decision”).

The Director’s Decision

11.  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”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the low intensity and frequency of past ill-treatment from the MQM members indicated the future risk of being harmed or killed upon his return to Pakistan is unlikely to materialize [13]-[15]; (ii) state protection will be available to him upon his return [16]-[25]; (iii) internal relocation is viable [26]-[30] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [31]-[36], Persecution risk [37]-[41] and Torture risk [42]-[45].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board.  On 14 November 2018, the Board conducted an oral hearing with an interpreter.  

14.  Having considered the applicant’s evidence, the Board found that, taking the face value of his evidence, the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [12]-[24], [55].  In any event, internal relocation was also available to him [56]-[60].

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

15.  The applicant has filed Form 86 dated 31 May 2019 for leave to apply for judicial review of the Board’s Decision.

16.  In the affirmation in support of his application, the applicant said that the Board did not look into his case deeply.  His enemy had approached his father for his whereabouts.  When his father refused to disclose, the people attacked and injured him.

DISCUSSION

17.  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).

18.  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 he disagreed with the Board’s Decision.

19.  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.”

20.  For the reasons given by the Board, the Board rejected the applicant’s claim.  The applicant’s reasons given in paragraph 16 are his general comments are not valid to challenge the Board’s Decision.

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