SADIQ HAROON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1887/2019

[2024] HKCFI 2409

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1887 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 28 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. However, he was absent at the hearing on 2 September 2024 without prior notice to the Court. I shall deal with his application on paper.

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 29, is a Pakistani. He entered Hong Kong illegally on 15 January 2017 and he surrendered to the Immigration Department on 16 January 2017. The applicant lodged a non-refoulement claim on 5 May 2017 and 3 July 2017. The claim was made on the basis that, if refouled, he would be harmed or even killed by his girlfriend’s brother because he did not want the applicant to marry his sister.

5.  According to the applicant, he first met his girlfriend when he was working in an internet café. His girlfriend’s father was rich and belonged to the Pakistan Muslim League (Nawaz) (“PML(N)”) while the applicant and his family were middle class and supporters of Pakistan Tehreek-e-Insaf (“PTI”). The applicant and his girlfriend soon fell in love with each other and even planned to get married 5-6 months later. However, his girlfriend’s family disapproved their relationship and even pressurised her to marry the son of PML(N) minister.

6.  Thereafter, the applicant was assaulted on two occasions by gangsters sent by the brother of his girlfriend. His family members were also tortured and his father’s shop was burnt down. Although the applicant reported the matter to the police, they did not take any action.

7.  Due to the continuous threats from his girlfriend’s brother, the applicant relocated elsewhere. After a while, his girlfriend’s family found out his whereabouts and they came to vandalised his home while he was out. The brother of the applicant’s girlfriend even accused the applicant of murdering a politician and the police were after him. Eventually, the applicant left Pakistan for Mainland China on 25 August 2016 and he sneaked into Hong Kong on 15 January 2017.

8.  The applicant was of the view that he could not seek protection from the authorities because corruption was very common in Pakistan. He also considered internal relocation risky because his girlfriend’s family could locate him with their resources.

9.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 27 April 2018 (“the Director’s Decision”).

The Director’s Decision

10.  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”).

11.  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-treatments from the brother and family of his girlfriend indicated that the threat was not as imminent as he claimed [11]-[12]; (ii) there was no evidence showing involvement from the Pakistani government or that his girlfriend’s brother/family had means to find the applicant anywhere within Pakistan [14]; (iii) state protection would be available [15]-[19]; (iv) internal relocation would be viable [20]-[23] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [24]-[29], Persecution risk [30]-[34] or Torture risk [35]-[37].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. He requested the Board to make a decision without a hearing because he had nothing more to add. The appeal was therefore proceeded without a hearing [8].

13.  The Board noted that the applicant gave inconsistent evidence regarding the two assaults he encountered [22]. His claim about the accused murder was also vague and lacked details [23].

14.  As the applicant opted not to have a hearing, the Board could not clarify the above matters with him [24]-[28]. The Board placed no weight on the applicant’s claims and concluded that he had not established a real risk of facing ill-treatment upon his return to Pakistan [30].

15.  Based on such findings, the Board was satisfied that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [31]-[40]. His appeal was therefore dismissed and the Director’s Decision was confirmed.

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

16.  The applicant has filed Form 86 dated 5 July 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In his affidavit in support of his application, the applicant has, insofar as the Board’s Decision is concerned, set out his reasons as below.

(1)  The Board’s Decision is wrong because it had not taken into account his right to life and it had not given him sufficient time to prepare for his appeal.

(2)  State acquiescence was not taken into account.

(3)  Corruption and incompetence of the government were not taken into account.

DISCUSSION

18.  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).

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

20.  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.”

21.  The applicant requested no hearing and he had abandoned his right to clarify his evidence to the Board. For the reasons given, the Board was entitled to come to its conclusion as it did. The reasons under paragraph 17 do not assist the applicant. They are his bare assertions or opinions without any evidence in support. They are not valid to challenge the Board’s Decision.[1]

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

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.