ABBAS RAEES v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1716/2019

[2024] HKCFI 1676

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1716 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 Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 14 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 27 May 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 31, is a Pakistani.  He entered Hong Kong illegally on 5 April 2016 and surrendered to the Immigration Department on the same day.  The applicant made a non-refoulement claim on 24 October 2016.  The claim was made on the basis that, if refouled, he would be harmed or even killed by a Mr Butt and his subordinates, who were members of the Pakistan Muslim League (Nawaz) (“PML(N)”).

5.  According to the applicant, he and his family members were supporters of Pakistan Muslim League (Quaid-e-Azam Group) (“PML(Q)”).  In about 2006, Mr Butt and his cousin filed a case against the applicant’s father, accusing him of murdering the latter’s sister.  The applicant claimed that his father was framed because of a long-running dispute between the two families that happened in 2002, during which they had an argument and a fight at a football match.  Subsequently, the applicant’s father was convicted for murder and was sentenced to imprisonment for 14 years.  One day in late 2007, when the applicant was with his brothers and two uncles, they saw Mr Butt and his cousin fired bullets into the air and broke the front gate of the applicant’s house.  The incident was reported to the police, but no one was arrested.  

6.  In 2011, the applicant’s father was released from prison after his appeal on the murder case was allowed.  Thereafter, nothing eventful happened until 2013, when the applicant and his father were attacked on their way to attend a wedding.  On that occasion, their car was hit from behind by another car.  Then Mr Butt together with a group of men carrying metal rods and sticks came out from the car behind to assault the applicant, his father and their driver.  Subsequently, the three of them were sent to a hospital for treatment by some passersby.  The applicant’s family reported the assault to the police, but they were unable to locate the perpetrators.  Eventually, the applicant’s father died from his injuries in July 2013.

7.  In late 2013, about 4 - 5 months after the death of his father, the applicant and his family moved to stay at his maternal aunt’s house to avoid the members of the Butt’s family.  In late 2014, the applicant and a younger brother of his grandfather moved to stay with the latter’s teacher.  In early 2015, the applicant’s mother and brother joined them and they all lived together in a rented house.  The applicant and his family returned to their hometown in mid-2015 because they wanted to return to their normal life.  However, in late 2015, when the applicant was on his way home from the market, he encountered Mr Butt, who pushed him to the ground and threatened to kill him because his father had killed his cousin.  The applicant told his family what had happened and they agreed that he should leave Pakistan.  On 27 March 2016, he left for Mainland China and eventually sneaked into Hong Kong on 5 April 2016.

8.  While in Hong Kong, the applicant learnt that Mr Butt came to look for him from time to time and his younger brother had been attacked by Mr Butt and his underlings.  The applicant was of the view that he could not seek protection from the police because he believed that they sided with PML(N), which had wide connection with the government.  He also considered internal relocation not viable due to his lack of financial resources and the high risk that he would be found by Mr Butt given the strong network of PML(N) within Pakistan.

9.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 29 January 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-treatment from Mr Butt and his subordinates indicated that the applicant should not face a real and substantial risk of harm upon return [12] - [13]; (ii) state protection would be available to him [14]; (iii) internal relocation would be viable [15] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [17] - [22], Persecution risk [23] - [28] or Torture risk [29] - [33].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board.  The hearing was scheduled on 6 May 2019, for which the applicant failed to attend.  Notice of the Board’s intention to determine the applicant’s appeal in his absence was sent to his reported address on the same day.  As the applicant did not give any written explanation for his failure to attend the hearing within 7 days, the appeal was determined in his absence [14] - [17].

13.  The Board observed that the applicant’s claims were lacking in detail in significant respects and that he did not provide detailed information regarding (i) the dispute between his family and the Butt’s family; (ii) the false accusation of murder against his father and the subsequent conviction; (iii) the assault on him and his father in 2013; (iv) his relocation with his family in late 2013 to avoid the members of the Butt’s family; (v) circumstances of the assault by Mr Butt in late 2015 when he returned to his hometown and (vi) why he did not consider internal relocation a viable option [24] - [27].

14.  Given the absence of the applicant, the Board had insufficient evidence to be satisfied that the events raised by the applicant were factual and had no confidence in accepting his claims.  It rejected his claims that he was at risk due to a long-running dispute between his family and the Butt’s family and that he left Pakistan due to his feared harm from Mr Butt [28] - [30].

15.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [32] - [53].  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

16.  The applicant has filed Form 86 dated 21 June 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In his affirmation in support of his application, the applicant said he disagrees with the Board’s Decision.  He further said that he does not want to go back or his life will be in danger.

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.  Under section 15 of Schedule 1A of the Ordinance, if the applicant was absent at the hearing, the Board, after giving due notice to the applicant for explanation, might proceed to hear the appeal in the absence of the applicant.

22.  The Board did so and considered the facts of the applicant’s case.  For the reasons given above, the Board rejected his evidence, which the Board was entitled to do under those circumstances.

23.  There is no valid reason from the applicant to challenge the Board’s Decision.  Nor is there any explanation from the applicant for his absence before the Board.

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

CONCLUSION

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

Form CALL-1