SAEED NAQASH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2955/2019

[2024] HKCFI 2389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2955 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 Applicants:

Introduction

1.  This is an application by Mr Saeed Naqash (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 26 September 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 4 June 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (the “Claim”).

Background of the Applicant

2.  As set out in the DOI Decision and the Board’s Decision, the Applicant is a Pakistani. He was born on 9 May 1990.

3.  He obtained a Bachelor degree of Art in Pakistan. From 2013 to 2014, the Applicant worked as a cashier. He was unemployed for about 2 years before he left Pakistan in 2015/2016.

4.  The Applicant is a supporter of Pakistan Tehreek Insaf (“PTI”), a political party in Pakistan. He was introduced to PTI in about 2012. He was asked to promote PTI amongst people of his area to vote for PTI in the May 2013 election. The Applicant was a very active supporter of PTI but he did not hold any position in the party.

The Claim

5.  In about April 2013, while the Applicant was in the PTI’s party office at Sarsubahshah, he was attacked by supporters of Pakistan Muslim League (Noon) (“PMLN”), another political party in Pakistan. They hit the Applicant with wooden sticks. He suffered head injuries and received stitches to his wound in hospital. He stayed in the hospital for one hour. It took him 3 to 4 days to recover. (“1^st Incident”)

6.  The Applicant discussed the 1^st Incident with PTI leader and was advised not to relate the matter to the police as PTI party leaders would raise the matter with PMLN leaders to avoid similar incident in foreseeable future.

7.  PMLN won the May 2013 election.

8.  In about August 2013, while the Applicant was riding motorcycle on his way home, his motorcycle was hit from behind by a car driven by PMLN supporters. He fell from his motorcycle and sustained injuries on his knee and elbow. The PMLN people approached him and fired a pistol into air. They told the Applicant that if they saw him again, they would not spare his life. (“2^nd Incident”) The Applicant was sent to hospital for medical treatment. It took him around 2 weeks to recover.

9.  The Applicant reported the 2^nd incident to the police station at Kalarsayedan. The police registered a First Information Report in the Applicant’s favour but made no arrest. The Applicant did not further pursue or follow up his reported case progress or seek assistance from other relevant authorities.

10.  Shortly after the 2^nd Incident, the Applicant moved to live with his cousin at Kashmir for 6 to 7 months. During that period, he received threatening calls from PMLN supporters. Apart from that nothing eventful happened during his stay at Kashmir.

11.  The Applicant returned home in September/October 2015 after the PMLN administrator at his area promised not to do anything against him in the foreseeable future. However, 2 weeks after he returned home, the Applicant was attacked by PMLN people with iron rods and wooden sticks. He sustained some scratches on his body. (“3^rd Incident”) He received medical treatment in hospital. It took him around 1 week to recover.

12.  After the 3^rd Incident, the Applicant kept receiving threatening phone calls causing him mental torture but he did not seek medical assistance.

13.  The Applicant felt unsafe in Pakistan. His friends helped him to arrange for visa and air ticket to China. From China, he came to Hong Kong. When he was in Hong Kong, his parents told him that the danger was still there. The PMLN people continued looking for him from time to time.

14.  The Applicant claimed that his life would be endangered by the PMLN supporters upon his return to Pakistan as he was a supporter of PTI.

Procedural history

15.  On 12 January 2016, the Applicant sneaked into Hong Kong from the Mainland. He was arrested by the police for suspected illegal remaining in Hong Kong on the same day.

16.  On 14 January 2016, the Applicant was referred to the Immigration Department for further investigation. By a written signification dated 15 January 2016, the Applicant lodged the Claim.

17.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”) (“persecution risk”).

18.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

19.  On 9 October 2019, the Applicant filed the Form 86 herein (the “Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant named both the Board and the Director as proposed respondents and interested parties in the Form 86.

20.  The Applicant filed his supporting affirmation on 9 October 2019 (the “Supporting Affirmation”).

21.  On 15 July 2024, the Applicant filed another affirmation applying to “close” his case because his mother was seriously ill and he wanted to go back to his country as soon as possible. As such, the Applicant is seeking to withdraw his intended judicial review application (the “Withdrawal Application”).

The DOI Decision

22.  After considering all the relevant circumstances, the Director assessed the risk of harm to the Applicant to be low.

23.  The Director considered the low intensity and frequency of past ill-treatment was indicative of a small risk of harm upon his return to Pakistan. There was no objective evidence to suggest that the PMLN people had a real intention to inflict serious harm on the Applicant or kill him.

24.  The Director did not accept that the ill-treatment, whether physical or mental, inflicted upon the Applicant by the PMLN people attained a minimum level of severity.

25.  The Director viewed that the Applicant’s problem with the PMLN people was nothing official. The Applicant was merely an ordinary supporter of PTI out of many and his engagement in the party was of low-tier. There was no suggestion that the illicit acts of those attacking the Applicant were planned by the government officials or were representing the official stance.

26.  If it was accepted that the Applicant had been threatened or assaulted by the PMLN people, it only indicated that the threats were localized in his home area as nothing eventful happened in the 6 to 7 months when the Applicant was staying in Kashmir other than some threatening phone calls. There were no substantial grounds for believing that all PMLN people as a whole were targeting the Applicant or that they would/could mobilize huge resources to search for the Applicant throughout the country.

27.  After considering the relevant country of origin information (“COI”), the Director formed the view that the availability of state protection would further lower or negate the level of risk. The objective information in the COI showed that although there was information showing that the Pakistani police were corrupt and ineffective, there was COI showing that reforms had taken place and were on-going in Pakistan and Pakistani government had taken practical steps to monitor the conduct of Pakistani police and improve their effectiveness. Official channels were available in Pakistan to facilitate complaints against misconduct of the police or government officials in Pakistan.

28.  The Applicant made a report to Pakistani police once after the 2^nd Incident and the police did not arrest anyone. The Applicant asserted that the police or other Pakistani authorities could not protect him or help him and were not willing to take any action against PMLN people.

29.  However, COI showed that the Pakistani police did take actions against the wrongdoers who were associated with PMLN to protect its citizens. The Pakistani authorities would enforce law and order and arrest criminals irrespective of their background. COI further showed that even if certain Pakistani police officers failed to discharge their duties to offer assistance to the Applicant or abuse their authority to stop/delay the investigation of any case, one could register a complaint online against a police official and there was also an Ombudsman in Pakistan for citizen to redress the grievance against maladministration and corruption practices.

30.  The Director did not accept that reasonable state protection would not be available to the Applicant if he requested upon his return to Pakistan.

31.  The Applicant had stayed in Kashmir for 6 to 7 months without encountering any problem. The PMLN people were unable to locate him in Kashmir. He obtained his passport and departed Pakistan without any problem. This showed that he was not being targeted by the whole PMLN or the Pakistani government.

32.  Taking into account that the claimed threats and harm from the PMLN people were localized and did not involve official capacity, there was nothing to suggest that they would have influence and resources spreading over the whole country of Pakistan for the purpose of locating the Applicant. The Director considered that internal relocation was feasible for the Applicant to avoid any harm or threat from the PMLN people.

33.  Pakistan had an estimated population of 205 million people spreading across more than 796,000 sq. km. The Applicant had many options for relocation in Pakistan and it would be very difficult for the PMLN people to locate the Applicant among such a large population and in such a large country.

34.  The Applicant could relocate to Karachi or Lahore (with population around 16.6 million and 8.74 million respectively in 2015) to avoid the risk of harm from the PMLN people. Internal relocation is permissible under the laws in Pakistan. Being an able-bodied young man with working experience, the Director was of the view that it should not be difficult for the Applicant to secure an employment and earn a living in Karachi or Lahore. It was not considered unduly harsh for him to relocate to these cities to lower or negate the perceived risk upon his return to Pakistan.

35.  For the aforesaid reasons, the Director did not accept that the Applicant would face a real and personal risk of being subjected to ill-treatment prohibited by BOR 3 upon his return to Pakistan. The Director also found that the Applicant failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 upon his return to Pakistan.

36.  The Director considered that the risk of the feared ill-treatment was unlikely to be materialized. Couple with the option of internal relocation and availability of state protection, the Director did not accept that the Applicant’s fear was well-found. The Director assessed that the Applicant’s case did not warrant non-refoulement protection on the grounds of persecution risk.

37.  The Director did not accept that there were substantial grounds for believing that the Applicant would be subject to torture inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

38.  The Applicant did not encounter any problem upon departure from Pakistan. He was not a target of the Pakistani government or authorities. The Director assessed that the Applicant’s case did not warrant non-refoulement protection on the grounds of torture risk.

39.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

40.  Having carefully considered all the evidences, the Board found that the Applicant had not made out a case for any of the USM grounds.

41.  The level of injuries sustained by the Applicant in the Incidents was not serious. There was no concrete evidence to show that those PMLN supporters attacking the Applicant had intention to kill him. The Board considered that no severe pain or suffering within the definition of “torture” was ever inflicted upon the Applicant at the time when he was in Pakistan and the Applicant failed to establish his claim under torture risk.

42.  The Applicant told the Board at the hearing that PMLN was no longer the ruling party in Pakistan and there was no evidence to suggest that the assaults inflicted by the PMLN supporters on the Applicant involved any government official. They were not inflicted by, or with the consent or acquiescence of a government official or other people acting in an official capacity.

43.  The Applicant’s fear of ill-treatment did not fall within any of the Refugees Convention categories, namely on account of race, religion, nationality, or membership of a particular social group or political opinion. Though the Applicant claimed that he was a supporter of PTI, his feared ill-treatment was private in nature and had nothing to do with any government authorities.

44.  The Board found that the Applicant failed to make out his claim for persecution risk.

45.  The Board found that the ill-treatment suffered by the Applicant had not attained “a minimum level of severity”. The injuries suffered by the Applicant in the Incidents were not serious. Even though he received some threatening calls, he did not encounter any further physical or mental ill-treatment before leaving Pakistan. He did not face a genuine and substantial risk of being subjected to ill-treatment prohibited by BOR 3.

46.  The Board found that the evidence did not show that the Applicant would face the risk of being arbitrarily deprived of his life upon his return to Pakistan. Hence, the Board found that the Applicant had failed to establish his claim for BOR 2 risk.

47.  The Board had consider the COI and noted that even though there was some information showing that Pakistani police were corrupt and ineffective, there were objective indications that the Pakistani government had taken practical steps to monitor the conduct of Pakistani police. The COI revealed that Pakistani police would take action to arrest PMLN leaders if they violated the law, even though the leaders were politically connected.

48.  The Board also found that the experience of the Applicant was a localized issue. There was no evidence to suggest that the government officials were involved in his alleged fear. With internal relocation to other large urban centres of Pakistan such as Karachi and Lahore, the Applicant could avoid risk of harm from the PMLN people upon his return to Pakistan.

49.  Being an able-bodied young man who was well educated with a bachelor degree, it was feasible for the Applicant to relocate to other areas in Pakistan to avoid the PMLN people and earn a living there.

50.  After considering all the evidence adduced by the Applicant and for reasons stated in the Board’s Decision, the Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

51.  In a judicial review, the court does not step into the shoes of the decision makers.

52.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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”.

53.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

54.  The Applicant did not advance any grounds for his intended judicial review in the Form 86 or the Supporting Affirmation. In the Supporting Affirmation, the Applicant only stated that he would like to reject and review the Board’s Decision and the Board had disregarded his dangerous situation. The Applicant only exhibited the Board’s Decision to the Supporting Affirmation without other supporting documents. In effect, the Applicant seeks to challenge the findings of fact of the Director and/or the Board which is not permissible in a judicial review.

55.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

56.  Having rigorously examined the Board’s Decision, the DOI Decision and the Supporting Affirmation with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness.

57.  The Board found that the injuries claimed to have been suffered by the Applicant in the Incidents were not serious; the alleged ill-treatment suffered by the Applicant did not meet the threshold of “a minimum level of severity”; the Applicant was not targeted by the government authorities of Pakistan; the attacks and threats encountered by the Applicant were localized issues not acquiesced by government authorities; reasonable state protection was available; and internal relocation was a real possibility for the Applicant in Pakistan. It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court on a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Board’s Decision is without fault. The proposed judicial review does not have realistic prospects of success.

The Withdrawal Application

58.  The Applicant subsequently filed the Withdrawal Application on 15 July 2024.

59.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

60.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

61.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

62.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss his application for leave to apply for judicial review.

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