RAUF ABDUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1290/2019

[2024] HKCFI 322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1290 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 absent 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, a hearing was fixed to take place on 28 June 2023. But he was absent without prior notice to court. His application is therefore dealt with on paper.

The applicant

3.  The applicant is a national of Pakistan who has a long history with the authorities in Hong Kong. He first arrived in Hong Kong on 2 August 2002 as a visitor but did not depart after the stipulated deadline. He was therefore arrested by the police on 9 January 2003 for overstaying. He was repatriated to Pakistan on 10 February 2003. He was arrested by the police in Hong Kong again on 27 December 2004 and claimed to have arrived in Hong Kong using the another identity of “Alroof” on 14 July 2003. He was subsequently convicted of the offenses of making a false representation to an Immigration Assistant and knowingly misleading a police officer on 11 April 2005, for which he was sentenced to a total of 16 months’ imprisonment. He lodged a torture claim on 21 November 2005 but the same was withdrawn on 20 July 2006. He was again repatriated to Pakistan on 26 July 2006.

4.  On 20 December 2007, he was arrested for the third time by the police for, inter alia, suspecting of trafficking a dangerous drug, for which he was sentenced to six months’ imprisonment on 2 April 2008. Previous to his conviction, he lodged a torture claim on 27 December 2007 which was rejected by the Director on 11 November 2013. He made a claim for non-refoulement protection on 22 November 2013 upon the implementation of the Immigration Department’s unified screening mechanism (“USM”) and subsequently appealed against the torture claim decision of the Director to the Board on 25 November 2013. The Board therefore adjourned the appeal sine die with liberty to restore. In short, the applicant claimed he would be harmed or killed by the following: (i) the Machhi people due to land, inter-caste, and political disputes with them; and (ii) the Pakistani police as the Machhi people had filed false charges against him for the murder of their people. In light of his previous torture claim, the applicant’s non-refoulement claim was assessed on all applicable grounds except Torture risk[1].

5.  According to the applicant, the land belonging to his family was forcefully occupied by the Machhi people (notwithstanding they were a lower caste). The Machhi were rich and supported the Pakistan People’s Party (“PPP”), which was the political ruling party at the material time. The applicant’s family belonged to the Muslim League Nawaz Party, which opposed the PPP. The forceful occupation of his family’s land by the Machhi occurred in around August 1993, which caused physical altercation between the two groups. This dispute escalated into violence and caused the death of one of his cousins, who was stabbed by a member of the Machhi. During the funeral ceremony, his family was again attacked by the same members of the Machhi people and he managed to fled the scene. Despite a police report was filed, there were no actions taken.

6.  The second assault allegedly occurred after the applicant’s family reported the above funeral incident to the police. On the same day, the police came and, instead of making investigation into the matter, arrested him and his family and they were beaten at the police station. The family therefore fled to Landi for about four years until 1997. When they attempted to return home in December 1997 hoping that the situation had subsided, the applicant and his father were shot at by the Machhi and his father sustained a bullet wound to his right thigh. The applicant fled his home town again and only returned for a funeral in around February or March 1998 when he found out his uncle was killed. During the funeral procession of his uncle, the Machii arrived and began firing shots at his family home. This incident was again reported to the police but no action was taken. He moved and lived with another uncle from 1999 to 2001; and similarly with another relative in late 2001/early 2002. He was again shot at during his stay with the latter relative and in July 2002, he decided to flee to Hong Kong from Pakistan in fear of his own safety.

7.  One month after his first repatriation to Pakistan, he was arrested by the Pakistani police and charged for the murder of a Machhi member. He was beaten at the police station. Upon his release, he again feared for his life and fled Pakistan to go to Hong Kong. He claimed he did not lodge a torture claim at the earliest opportunity because he was unaware such process existed. In any event, he claimed he was attacked again after his second deportation back to Pakistan in or around August 2006. He was beaten by the police for an attempted murder charge. Despite the Pakistani immigration denying him to exit the country, he allegedly bribed them and was able to flee to Mainland China. Thereafter, he made arrangements to go to Hong Kong. Details of his claim are set out at [36] – [75] of the Notice of Decision dated 24 March 2017 by the Director (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”); and

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”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that: (i) the level of risk from the Machhi people was assessed to be low as it was personal and private matter; and in addition, he did not sustain any injuries at all during the above various incidents with the Machhi [82] - [93]; (ii) his conduct of withdrawing his previous torture claim and his lodging arrangements whilst he was in Pakistan were inconsistent with someone who was seeking asylum [94]; (iii) in relation to the risk of harm from the police, the ill-treatment inflicted had not cause any permanent physical or mental harm; and that there was no substantial grounds to believe he would be arrested and tried unfairly in Pakistan if refouled [96] – [100]; (iii) the applicant’s overall credibility was unacceptable due to, inter alia, his delay to bring his non-refoulement claim at the earliest opportunity and his failure to give accurate accounts of events [102] – [103]; (iv) state protection was available [104] – [106]; and (v) internal relocation alternatives were available and reasonable [107] – [113].

The Board’s Decision

10.  The applicant restored his appeal upon the Director’s Decision under the USM to a newly constituted Board. He was legally represented via the Duty Lawyer Service at the oral hearings held on 25 July 2018, 11 September 2018 and 29 January 2019. The Board assessed his claim on all applicable risks, including Torture risk[2].

11.  First of all, the Board found that the applicant had delayed his application for non-refoulement protection because he had delayed interviews with the immigration officer. At paragraphs 11 and 14, the Board remarked:

“11. In total only 3 interviews were cancelled due his illness while the other 6 interviews were aborted due to his legal representative.

12. For bona fide claimants it is always their wish to have the screening process completed as soon as possible while for those who did not have valid grounds would try to delay the process as long as possible.

13. Apart from the hospital slip produced for the scheduled 29 April 2016, the medical certificate in respect of the 19 May 2016 scheduled interview showed that he suffered from “medical condition” which meant there was no diagnoses in respect of his illness.

14. In respect of the scheduled interview on 2 February 2017 he attended with his legal representative but claimed sick and unfit to attend the interview. The medical certificate showed that he was suffering from URTI which was not serious.”

12.  The Board then recapped the applicant’s claim [19] and the same was evaluated [20]. Having considered the evidence, the Board found the following facts:

(1)  The applicant had given inconsistent statements in relation to the same incident and the Board was of the view that his evidence was therefore not reliable. [20(1)].

(2)  Neither the Machhis or police had inflicted any serious injuries on the applicant. [20(2)]

(3)  The incidents were only a land dispute between 2 parties. It was just a red herring, saying that the applicant’s family belonged to the Mehar Castle and his neighbour belonged to the Macchi Caste. It just happened that his neighbours were from the Machhi Caste. Also, there was no evidence to suggest that PPP (the party the Machhi supported) and PML-N (the party the applicant’s family supported), had been involved in their dispute. [22] – [25].

(4)  The applicant had never been actively involved in their family dispute. [26] He had never been a target of the Machhis and had not suffered any injuries from the Machhis. [27]

(5)  As to the First Investigation Reports with the police that he was accused of murder, these are bare allegation, not supported by evidence. [32]

(6)  The applicant’s conduct was inconsistent with someone who was tortured and wanted non-refoulement protection. [[32] – [35]

13.  The Board found that the applicant had not made out a case in respect of any of the applicable risks for the reasons that follow.

(1)  State protection was available to him upon his return to Pakistan. [41]

(2)  The applicant had never been inflicted with any severe pain or suffering and had not been “tortured” as defined under section 37U(1) of the Ordinance. [41(i)]

(3)  The applicant had failed to establish a personal and real risk of BOR 2. [48]

(4)  It was unlikely that he would face a genuine and substantial risk of being subjected to ill-treatment under BOR 3 upon his return to Pakistan. [53] and

(5)  The applicant’s fear of ill-treatment did not fall within the definition of Persecution. [56]

14.  Also, his fear of the Machhis was localized. Internal relocation was a viable option. [57] – [61]

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

15.  The applicant has filed Form 86 dated 14 May 2019 for leave to apply for judicial review of the Board’s Decision.

16.  In the applicant’s affirmation in support of his application, the applicant said that the Board’s Decision was unreasonable. He has raised the grounds below.

(1)  He considered that he is entitled to the non-derogatory rights under BOR 3 risk.

(2)  He considered that the Director had violated his rights under Torture risk, BOR 2 risk, BOR 3 risk and Persecution risk.

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 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).

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

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.  The Board had, for the reasons given above, found that he is not subjected to any real risk of being harmed or killed upon his return to Pakistan. His reasons under paragraph 16 are his bare assertions without any evidence in support of them.

21.  There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

23.  I refuse to grant leave to 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