NAWAZ TAIMOOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1316/2019

[2024] HKCFI 810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1316 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 9 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 is a national of Pakistan.  He surrendered to the Immigration Department on 13 May 2015 and upon investigation, he admitted he entered Hong Kong illegally on 2 May 2015.  He lodged a non-refoulement claim on 19 August 2015 on the basis that he would be harmed or killed by Mohammad Ashfaq and his men due to a confrontation on 17 September 2011, during which Ashfaq’s brother and sister was shot dead by the applicant’s cousin. 

5.  According to the applicant, there had always been discord between his family and Ashfaq due to a land dispute.  On 17 September 2011, he and other members of his family were working on their land when Ashfaq, together with some unknown individuals, came bearing pistols and guns.  There was a verbal conflict between themselves and suddenly, Ashfaq shot the applicant’s paternal uncle and his cousin.  A shootout ensued and both sides suffered injuries. When Ashfaq’s sister came, she was shot by one of the applicant’s cousins when she tried to protect Ashfaq and died on the spot.  When the applicant took the pistol away from his cousin, Ashfaq mistakenly thought it was he who shot the sister.  In any event, the shootout ended when Ashfaq and his men fled the scene.  When the applicant and his cousin went to the police to file a report, they were turned away.  It was suspected that Ashfaq likely had a strong connection with the police.  The applicant subsequently received a death threat via a representative of Ashfaq at his home a few days after the shooting incident.  In fear, he relocated to various regions of Pakistan from October 2011 to August 2013.  However, he asserted that each time Ashfaq was able to locate him.  On the last occasion in August 2013, he was beaten by Ashfaq as revenge for the death of his sister.  The applicant therefore decided to flee Pakistan and made arrangements to go to Mainland China. Details of his claim are set out at [7] of the Notice of Decision dated 5 January 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

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

b.  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”);

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

d.  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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that: (i) the risk of harm was assessed to be low as Ashfaq’s behavior is indicative that there is no real intention to carry out the death threats against the applicant [12] and [13]; (ii) the injuries sustained by the applicant did not attain a minimum level of severity within the definition of torture; and given the lapse of time, it also indicated Ashfaq did not have real intention to kill him [14] and [15]; (iii) state protection is available [17] and [18]; and (iv) internal relocation was reasonable which further lowered or negated the perceived risk [19] – [24]. 

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 8 April 2019, the Board conducted an oral hearing for his appeal, during which he elected to give evidence [7(viii)].

9.  The Board recapped the applicant’s claim before the Director [8] – [30] and discussed his evidence before the Board [31] – [45].  In essence, the Board rejected the entirety of the applicant’s claim and held the same to be a mere pretense to remain in Hong Kong [59].  There were several factors which resulted in the Board’s adverse findings against him, such as: (i) his inconsistency to be unable to recall critical information (eg the time of the shootout, the ownership of the land dispute or the correct name of “Ashfaq”) [50] – [53]; (ii) there was no evidence that Ashfaq continued to blame the applicant for the alleged shooting incident [55]; and (iii) his conduct and whereabouts whilst in hiding were inconsistent as demonstrated from his written record before the Director and his testimony before the Board [56] and [57].

10.  In assessing the relevant grounds of non-refoulement protection, the Board found that, on the basis that the applicant was untruthful, his claim under torture risk was unsubstantiated [61] – [65].  Similarly, there was no factual basis to support the other relevant grounds (ie BOR 2 and 3 risk and Persecution risk) [66] – [77].

11.  As a result, the Board found that the applicant was not entitled to non-refoulement protection under any of the applicable grounds and his appeal was therefore dismissed.

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

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

13.  In his affirmation in support of his application, the applicant said he is not satisfied with the Board’s Decision, without raising any specific ground.

DISCUSSION

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

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

16.  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.”

17.  The Board, for the reasons given above, found that the applicant’s evidence was not accepted and his claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.  I refuse to grant leave for 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