ALI AMANAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2037/2024

[2025] HKCFI 534

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2037 OF 2024

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BETWEEN

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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 17 October 2014 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 13 January 2025.

The applicant

3.  The applicant, aged 42, is a Pakistani. He entered Hong Kong illegally on 22 December 2023 and he surrendered to the Immigration Department on 14 March 2024. The applicant lodged a non-refoulement claim on 24 June 2024. The claim was made on the basis that, if refouled, he would be harmed or even killed by a villager (“the villager”), who was well connected in his locality, and his sons due to a land dispute.

4.  According to the applicant, his father had bought a piece of land (“the Land”) from the father of the villager. Upon the death of the applicant’s father in 2012, the villager together with his sons started approaching the applicant’s family and claimed to be the owner of the Land. This led to frequent arguments and physical confrontations between the two families. One day in the evening of December 2022, the villager threatened to kill the entire family of the applicant after the applicant’s brother accused him of placing garbage in front of the applicant’s house (“the threatening incident”). Subsequently, in around late June 2023, someone fired shots at the applicant when he was on his way home, but failed to hit him (“the shooting incident”). Although both the threatening incident and the shooting incident were reported to the police, no action was taken by them. As the applicant is the eldest son and the person in line to inherit the Land from his father, he had serious concerns about his safety. Eventually, he left Pakistan for China on 13 August 2023 and then sneaked into Hong Kong from Shenzhen on 22 December 2023.

5.  While in Hong Kong, the applicant had maintained contact with his family and was informed that his enemies were still after him. He was of the view that the police would not protect him because they took no action when the matter was reported to them previously. Although the applicant did seek help from the seniors and village heads, the villager continued insisting that he and his family to return the Land. The applicant also considered internal relocation not viable because the villager could utilise his extensive network to locate him.

6.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 19 August 2024 (“the Director’s Decision”).

The Director’s Decision

7.  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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk. The Director found that (i) the absence of past ill treatment from the villager indicated that he had no real intention to seriously harm or kill the applicant [12]-[13]; (ii) there was no evidence of state involvement in the matter and no indication that the villager had the means to search for the applicant all over Pakistan [14]; (iii) state protection would be available [16]-[20]; and (iv) internal relocation would be viable [21]-[22].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 7 October 2024, the Board conducted an oral hearing.

10.  The Board noted there was a significant delay on the applicant’s part in seeking non-refoulement protection, which he failed to justify [25]-[26]. Regarding the applicant’s claims, he was inconsistent as to whether the threatening incident had happened. He also gave contradictory evidence in relation to (i) the circumstances of the shooting incident; (ii) the report to authorities; (iii) his whereabouts before departure from Pakistan and (iv) how he had travelled from Beijing to Guangzhou [31].

11.  The Board did not find the applicant to be telling the truth as his case was both vague and unbelievable. Apart from his background, the Board rejected his claims about the threatening and gunshot incidents [37]. In any event, taking the applicant’s case to the highest, there was no indication that the villager was as powerful as he asserted and that his claimed injury also failed to reach the requisite level of severity [41]. There was further no evidence that the villager could find him throughout Pakistan or that the Pakistani authorities were involved in the matter [42]-[43].

12.  Based on such findings, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [3]-[14], [46]-[58]. Furthermore, state protection [45] and internal relocation would also be available [36], [61].

13.  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

14.  The applicant has filed Form 86 dated 6 November 2024 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of his application, the applicant has, insofar as the Board is concerned, raised the grounds below:

(1) the Board’s Decision is not reasonable or fair;

(2) the Board has failed to take into account BOR 2 risk for him;

(3) the Board had placed too much reliance on country of original information, but failed to take his personal background and experience into account;

(4) the adjudicator was procedurally improper or unfair not to accept his explanation and it unreasonably required him to respond to questions;

(5) the Board was in error dismissing his appeal whereas it should have allowed the appeal.

DISCUSSION

16.  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).

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. I asked the applicant whether he thought that the adjudicator was wrong in his decisions, he said that he had no comment on the adjudicator.

18.  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.”

19.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. Those grounds under paragraph 15 are his bare assertions or personal opinions without any evidence in support.

20.  There is no valid reason from the applicant to challenge the Board’s Decision.

21.  The Court should not interfere with the Board’s finding of the facts.

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

DISPOSITION

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