AHMED MUNIR AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 825/2019

[2023] HKCFI 2937

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 825 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 Applicants being present in open court;

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.  The 1^st applicant is the father, the 2^nd applicant is the 1^st son, the 3^rd applicant is the daughter and the 4^th applicant is the 2^nd son.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 1 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The joint application relies upon the facts of the 1^st applicant.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent, the Director of Immigration (the “Director”) is the interested party and the relief sought is the Board’s Decision.

The applicants

4.  The applicants are a family and nationals of Pakistan. The 1^st applicant entered Hong Kong illegally on 4 February 2010 and was arrested by the police on 5 February 2010 for illegal remaining. On 29 April 2011, the 1^st applicant married his wife in Hong Kong. The 1^st applicant’s sons were born on 27 August 2013 and 2 December 2014 respectively and his daughter on 8 May 2016.

5.  On 8 February 2010, the 1^st applicant raised a torture claim, which was taken as a non-refoulement claim after the commencement of the unified screening mechanism. On 12 June 2014, the 1^st applicant lodged a non-refoulement claim on behalf of his 1^st son. On 23 January 2015, their non-refoulement claims were treated as withdrawn as they failed to return the completed non-refoulement claim forms within the required time. On 1 June 2015, their claims were reopened upon the 1^st applicant’s request.

6.  By way of written representations on 11 July 2016 and 13 September 2016 respectively, the 1^st applicant lodged non-refoulement claims on behalf of his daughter and the 2^nd son. He further confirmed that their claims could be jointly assessed.

7.  The applicants’ claims were made on the same basis that, if refouled, they would be harmed or killed by Chaudahry Muhammed Zaheer (“Zaheer”), a member of the Pakistan Peoples Party (“PPP”), due to a personal dispute. Further, the 1^st applicant feared that he would be killed or imprisoned for a false case.

8.  According to the 1^st applicant, his family belonged to the Pakistan Muslim League (Q) (“PML(Q)”), in which his grandfather and uncle both held leadership positions. In 2004, the 1^st applicant was promoted to be the vice president of the Union Council No.111 Beisa (“UC Beisa”). In 2005, the 1^st applicant won the general councilor position of UC Beisa, defeating the other contestants, including Zaheer. In 2006, the 1^st applicant also became the chairman of Water Supply Board of District Gujrat. Again, Zaheer contested and lost in this position.

9.  However, in 2008, the PPP was in power and Zaheer’s cousins started to hold influential positions. Since then, the 1^st applicant’s dispute with Zaheer started. Zaheer first accused the 1^st applicant of arranging fake votes for his 2005 election. Nevertheless, the village council found in favor of the 1^st applicant. In April 2008, Zaheer’s people attempted to shoot the 1^st applicant and his secretary with guns. The 1^st applicant escaped but his report to the police station about the attack was of no avail.

10.  Thereafter, Zaheer framed a robbery against the 1^st applicant. The 1^st applicant was detained in a cell in the local police station, the situation of which was terrible and it was said to be used for political detainees. The 1^st applicant was also beaten and interrogated therein. Two weeks later, the 1^st applicant was transferred to the district jail where he did not receive any further ill-treatments. Two months later, he was brought to the court. The judge condemned the police officers who wrongly arrested the 1^st applicant and acquitted him.

11.  In September 2008, the 1^st applicant complained to the division police officer about his arrest. However, the officer did not do anything due to Zaheer’s influence. Meanwhile, in August 2008, the 1^st applicant’s relatives and supporter were attacked by Zaheer’s people and one of the 1^st applicant’s supporters was killed in the shooting incident. After the incident, Zaheer posed death threats to the 1^st applicant through the 1^st applicant’s brother. The 1^st applicant and the victim’s sons reported the murder to the police station. However, the police officers instead arrested the victim’s sons due to Zaheer’s influence.

12.  Meanwhile, the 1^st applicant claimed that he was attacked by the religious figures, collectively, the Maulvi, from the Jamaat-e-Islami (“JEI”) for leading rallies to promote peace in June 2009.

13.  In October 2009, the 1^st applicant was again framed by Zaheer for embezzling the government’s grant for the water supply system. Upon knowing the false case, the 1^st applicant moved to Rawalpindi and learnt that the police were looking for him. He then escaped to Lahore to avoid the arrest. Having consulted his lawyer, workers and supporters, the 1^st applicant decided to leave Pakistan and sought protection in Hong Kong. Details of their claims are set out at paragraph 12 of the Notice of Decision dated 17 January 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

14.  The Director considered the applicants’ claims in relation to the following risks:

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  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”);

(3)  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

(4)  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”).

15.  By way of the Director’s Decision, the Director dismissed their claims. In elaboration, the Director found that (i) the level of risk of harm from the 1^st applicant’s claimed enemies was assessed to be low [19]-[26]; (ii) state protection would be available to them [27]-[36]; and (iii) internal relocation was a viable option [37]-[43].

The Board’s Decision

16.  The applicants appealed the Director’s Decision to the Board. On 23 October 2018, 26 October 2018 and 20 December 2018, the Board conducted an oral hearing for their appeals, during which they were legally represented and the 1^st applicant gave oral evidence on their behalves [18].

17.  The Board recapped the 1^st applicant’s political background and his claims [29]-[79]. Having considered the evidence, the Board made the following findings. It accepted the 1^st applicant’s political background and his positions as district councilor and the chairman of water supply board [86]. Nevertheless, it rejected the 1^st applicant’s claimed past ill-treatments from the alleged political rivals [87]-[96].

18.  In particular, the Board found that the 1^st applicant’s evidence on the 1^st attack from Zaheer’s people was not credible and, even if the shooting incident existed, the attackers apparently did not possess any intention to kill the 1^st applicant [97]-[98]. Meanwhile, the Board also rejected the 1^st applicant’s complaint about the police. It found that, as a district councilor, the 1^st applicant was a prominent political figure who would have some general knowledge and connections with the police [99].

19.  Further, the Board rejected the 1^st applicant’s claimed false robbery case against him as it was illogical and his evidence of being ill-treated in the police station was also contradictory [100]-[103]. Even if the alleged ill-treatments existed, the evidence did not suggest the level of severity had reached the minimum requisite level [104]-[105]. The Board also rejected the 1^st applicant’s evidence on the help from an officer who believed that the 1^st applicant was innocent as the assertion was simply a self-serving statement reinforcing his claim [106]-[107].

20.  As to the described court proceedings, the Board found it to be nonsensical and artificial, which was another fabrication to boost his claim [108]-[113]. For the same reasons, the Board also rejected the applicant’s evidence on the alleged second attack, the attack from the Maulvi and the 2^nd false accusation from Zaheer [114]-[129].

21.  Besides, the Board noted that the injuries sustained by the 1^st applicant did not attain the minimum level of severity [130]. In addition, the Board refused to accept the 1^st applicant’s assertion that Zaheer was influential and was able to locate him everywhere in Pakistan [131]-[137].

22.  After considering the country of origin information, the Board also found that state protection would be available to the applicants [138]-[149] and internal relocation was also a viable option for them [150]-[155].

23.  In passing, the Board further provided reasons that none of the documents advanced by the 1^st applicant would support their claims [156]-[169] and it considered and rejected the submission from the duty lawyer for the applicants that the local police, Zaheer and Zaheer’s people were state actors [170]-[177].

24.  For the above reasons, the Board rejected the applicants’ claims and dismissed their appeals.

Application for leave to apply for judicial review

25.  The applicants filed Form 86 on 26 March 2019 for leave to apply for judicial review of the Board’s Decision.

26.  In the 1^st applicant’s affirmation in support of their joint application, the 1^st applicant said he would like to reject and review the Board’s Decision as it disregarded his dangerous situation.

DISCUSSION

27.  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 applicants’ 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

28.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant confirmed that at the Board’s hearing, they were legally represented; that they had an interpreter for the hearing; and that the duty lawyer told him that it is the Board’s policy to reject their application. He further confirmed that he had received the court’s letter advising them to seek legal aid, but he decided not to apply for legal aid until he has appeared before the Court.

29.  It is clear that the applicants were legally represented before the Board. Therefore, the Court of Appeal’s ruling in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971 that the minors’ interest was not put to the Board for its separate consideration because of lack of legal representation does not apply to this application.

30.  The grounds in paragraph 26, supra are not valid to challenge the Board’s Decision.

31.  The applicants fail to show that they have any realistic prospect of success in their proposed judicial review.

CONCLUSION

32.  Therefore, I refuse to grant leave to the applicants to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their 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

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