BESHARAT HUSSAIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1507/2019

[2024] HKCFI 2273

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1507 OF 2019

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 22 May 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 did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High 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 54, is a Pakistani. He had entered Hong Kong on various occasions using triple identities. The applicant last entered Hong Kong as a visitor on 30 March 2003 and overstayed since 14 April 2003. He was arrested by the police on 8 June 2008. The applicant made a torture claim on 26 June 2008, which was rejected on 27 July 2012. His subsequent appeal against the torture decision also got dismissed on 5 September 2012. On 19 March 2013, the applicant lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1]. The claim was made on the basis that, if refouled, he would be harmed or even killed by members and supporters of the Pakistan Muslim League (“PML(N)”).

5.  According to the applicant, he worked at the Pakistan People’s Party (“PPP”) office as a security guard in 1995 and thereafter became its supporter. One day in 2001, the applicant stopped two to three PML(N) supporters who tried to enter the PPP office. This then resulted in a minor scuffle. Eventually some PPP supporters arrived at the scene and the PML(N) supporters left after verbally threatening the applicant. 1-2 days later, the applicant was stopped by three unknown persons who claimed to be PML(N) members (“the three unknown PML(N) members”). They punched, kicked and hit him with the back of a gun. The applicant also got stabbed in his back by a sharp object. The applicant lost consciousness and suffered from bruises all over his body, cuts on his back as well as swollen legs. He was hospitalised for two days and took a week to recover. He resumed his duty as a security guard at the PPP office thereafter.

6.  Upon encouragement by PPP members, the applicant reported the matter to the police. However, the police did not register his report, but instead arrested and detained him due to a false report made by PML(N) members. While in custody, the applicant was verbally and physically assaulted by the police. As a result, he suffered from internal pain, though there was no open wound. The applicant also claimed that he was given no water, food or drinks while being detained.

7.  The applicant was bailed out three days later with a condition that he had to answer bail every 15 days. Around nine days after his release, the three unknown PML(N) members came to the PPP office again while the applicant was on duty as a security guard. They threatened to kill the applicant and fired two to three gunshots at him. The applicant managed to avoid the shots by running into the office. He did not report the shooting incident to the police because of what he experienced before. The applicant then fled and started relocating to various places within Pakistan since early 2002. He last stayed at his in-laws’ house for 2-3 months, during which he heard from some villagers that PML(N) members were still after him.

8.  Fearing for his safety, the applicant decided to jump bail and leave Pakistan in August 2002. His father-in-law paid a bribe to the immigration officers to let him depart at the airport. The applicant first arrived in Hong Kong on 16 August 2002. Thereafter, he travelled back and forth between Mainland China and Hong Kong until he last entered Hong Kong on 30 March 2003.

9.  The applicant was informed by his brother after his departure that there were people threatening to kill him if he returned to Pakistan. He was of the view that the police would not render any assistance to him because they were corrupt and that they would only help rich people, but not poor citizens like him. He also considered internal relocation within Pakistan not viable because he would be discovered sooner or later.

10.  Details of the applicant’s story can be found in paragraphs 9-26 of the Director’s Decision dated 12 July 2016 (“the Director’s 1^st Decision”).

The Director’s Decision

11.  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”).

12.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim. The Director found that (i) the absence or low intensity and frequency of past ill-treatment from PML(N) members/supporters indicated a small and low future risk of harm upon his return to Pakistan [36]-[70]; (ii) state protection would be available to him [71]-[79]; (iii) internal relocation would be viable [80]-[89] and (iv) the applicant’s case failed to meet any of the requirements under BOR 3 risk [90]-[91] or Persecution risk [92]-[98].

13.  In the Notice of Further Decision dated 13 July 2017, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return.

The Board’s Decision

14.  The applicant appealed the Director’s 1^st and 2^nd Decisions to the Board. On 6 July 2018, the Board conducted an oral hearing.

15.  The Board accepted that the applicant had been seriously assaulted previously. However, these incidents occurred many years ago so that the threats should have dissipated substantially. In any event, the political situation in Pakistan differed from that at the time when the applicant left the country according to the country of origin information (“COI”), so that he should no longer face a genuine and substantial risk of being harmed [57], [112]-[114].

16.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk or Persecution risk [19]-[30], [62]-[66], [89]-[101]. Furthermore, state protection would be available to the applicant taking into account the COI and that his claimed threats could be avoided by internal relocation [67]-[88], [104]-[110].

17.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s 1^st and 2^nd Decisions.

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

18.  The applicant has filed Form 86 on 3 June 2019 for leave to apply for judicial review of the Board’s Decision.

19.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

20.  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).

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

22.  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.”

23.  The Board accepted his evidence that he was assaulted previously. For the reasons given in paragraph 15 above, the Board considered that his risks had already dissipated over the long period of time of his stay in Hong Kong and he should have no real risk of any harm from his enemies if he returns to Pakistan. The Board further found that state protection is available to him and internal relocation is a viable option for him. He has raised no valid reason to challenge the Board’s finding of the facts. There is no reason for this Court to interfere with the Board’s Decision.

24.  The applicant has not raised any valid reason to challenge the Board’s Decision.

25.  The applicant therefore fails to show that his proposed application had any realistic prospect of success.

CONCLUSION

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