AKHTAR WALEED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1830/2019

[2024] HKCFI 2356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1830 OF 2019

_____________

BETWEEN

_____________

_____________

JUDGMENT

_____________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 26 June 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. He appeared before the Court on 15 July 2024.

The applicant

3.  The applicant, aged 34, is a Pakistani. He entered Hong Kong illegally on 11 September 2015 and was arrested by the police on the same day. The applicant lodged a non-refoulement claim on 25 September 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by the family of his girlfriend because they objected their relationship.

4.  According to the applicant, he first met his girlfriend in 2013 and they started dating after 3-4 months. Around 4-5 months later, his girlfriend’s uncle requested the applicant's family to stop him dating his girlfriend because they belonged to different social classes. About ten days later, the applicant and his girlfriend left for Islamabad. While in Islamabad, the applicant asked his uncle to make a marriage proposal to his girlfriend’s family. Yet, the proposal was rejected and his uncle was even shot dead during an argument with his girlfriend’s family. The applicant’s brother reported the incident to the police, but they did not offer any help to him. They even threatened to arrest him for making false claim.

5.  Later in the same week, some police officers came to the applicant’s home, kidnapping his father and one of his brothers. The police and his girlfriend’s brother then tortured them and threatened to kill them if the applicant’s girlfriend failed to return home. Therefore, the applicant asked his girlfriend to return home while he stayed at Islamabad alone. Shortly afterwards, the applicant’s father and brother were released.

6.  Thereafter, the applicant’s family relocated to avoid further trouble. Meanwhile, the applicant moved around between cities to avoid being found by his girlfriend’s family. In mid-2015, the applicant saw his girlfriend’s father and brother alongside with some unknown men in Islamabad. As the applicant believed that his girlfriend’s family still held grudges against him, he left Pakistan and eventually sneaked into Hong Kong on 11 September 2015.

7.  The applicant maintained contact with his family and his friends while in Hong Kong. He learnt from them that his girlfriend’s family were still looking for him at his home. The applicant considered internal relocation not viable because his girlfriend’s family would be able to locate him sooner or later, given their strong network. He was of the view that he could not seek protection from the police, not only because they refused to accept such kind of cases in the past, but also because they had a close relationship with his girlfriend’s family.

8.  Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 25 August 2017 (“the Director’s Decision”).

The Director’s Decisions

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 found that (i) the absence of physical harm from his girlfriend’s family in the past indicated that the risk of harm upon his return to Pakistan was not real and foreseeable [14]; (ii) there was no evidence showing involvement from the Pakistani government or that his girlfriend’s family had means to find the applicant anywhere within Pakistan [15]; (iii) state protection would be available to him [16]-[18]; (iv) internal relocation would be viable [19]-[21] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [22]-[27], Persecution risk [28]-[32] or Torture risk [33]-[36].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 7 May 2019, the Board conducted an oral hearing.

12.  The Board found the applicant’s evidence to be wholly unreliable and that the crucial elements of his claim was based entirely on hearsay. There were also material inconsistencies within his evidence regarding the time when he asked his uncle to make a marriage proposal to his girlfriend’s family and whether he moved around between cities alone or with his girlfriend. In the meantime, the applicant made no mention of the kidnapping and torture of his father and brother during the hearing, while making a new claim that his girlfriend’s family had threatened his family that they would be spared if the applicant were handed over to them [42].

13.  Based on such findings, the Board considered that the applicant was not a witness of truth and his claims were fabricated [43]. The Board was not satisfied that any ill-treatment or threats of harm had taken place. It concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [12]-[25], [47]-[50].

14.  The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

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

16.  The applicant has set out his grounds in support of his application in his affirmation and a statement attached to Form 86. I shall summarize them as follows.

(1) The Board had unlawfully fettered his discretion by refusing his appeal.

(2) The adjudicator acted in a procedurally unfair manner in dealing with his appeal. The hearing bundle was given to him shortly before the hearing and he did not have sufficient time to prepare for the hearing. He was confused at the hearing. He could not afford an interpreter. The Board failed to notify him of its decisions by phone as requested.

(3) The Board’s Decision is unreasonable or irrational in the public sense or it is a result of procedural errors or unfairness. He had answered all the questions put to him, but the Board found his credibility questionable. The Board had relied upon the source of news, which is not officially recognized or it is simply hearsay, or they are outdated cases, all of which resulted in the Board’s speculation that it is safe for him to return to his country. The adjudicator had not been to Pakistan to understand his situation there.

(4) The Board failed to meet the greater care and duty owed to a self-represented claimant.

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 complained that the Board did not accept his evidence.

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 above, the Board rejected the applicant’s evidence in support of his claim. The applicant’s claim becomes without factual basis.

21.  The reasons given under paragraph 16 do not render assistance to the applicant’s application. He had not applied to the Board for time to prepare his case and he was able to answer all the questions put to him. The fact that he did not have the interpreter’s service for his preparation for the hearing is not a valid ground[1]. The Board does not have a statutory duty to give notice to him of the Board’s Decision by phone. The question of his credibility of his evidence is within the province of the Board. The applicant has no viable reason to complain. The other grounds are his personal opinions or comments without any evidence in support. They are not valid grounds to challenge the Board’s Decision[2].

22.  There is no reason that this Court should interfere with the Board’s Decision.

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

DISPOSITION

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