ARFAT YASIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3126/2019

[2025] HKCFI 2510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3126 OF 2019

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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 23 August 2019 of the Torture Claims Appeal Board dismissing the applicant’s appeal against the Director’s 2^nd Decision in relation to BOR 2 risk (“the Board’s 2^nd Decision”). The date of the Board’s 2^nd Decision is wrongly said to be 15 August 2019. Accordingly, it should be amended.

2.  By the Board’s 1^st Decision, the Board had dismissed the applicant’s appeal against the Director’s 1^st Decision, dismissing his claim on the Torture risk, BOR 3, and Persecution risk. Since the Board’s Decisions are based on the same set of facts, I shall take into consideration of the Board’s 1^st Decision as well in this application.

3.  The applicant asked for a hearing. He appeared before the Court on 23 April 2025 and applied for withdrawal of his application. He explained that though he still had problems in his country, he wanted to return to his family because he had been away for a long time. Since he said that he still had problems in his country, this Court will consider the merits of his case here.

4.  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 date of the Board’s 2^nd Decision is 23 August 2019 and the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

5.  The applicant, aged 34, is a national of Pakistan. He was arrested by police on 27 April 2009. He admitted that he came into Hong Kong illegally by boat in April 2008 and remained in Hong Kong ever since. He made a torture claim to the Immigration Department and his claim was assessed under the unified screening mechanism together with BOR 3 risk and Persecution risk. His claim was based on his fear that, if refouled, he will be harmed or killed by the people from the Pakistan Muslim League – Nawaz (“the PML-N”) for his refusal to quit the Pakistan People Party (“the PPP”).

6.  According to the applicant, he was a supporter of the PPP. His joined the PPP when he was 18 years old. He was then working in a factory. When he was on a bus, he was assaulted by 2 unknown males for about 10-12 minutes. He did not seek medical treatment, but only applied pain-killer and ointment to his wounds. In a gym room, he was threatened by 5 people, who threatened to harm or kill him if he did not stop helping PPP. He reported the matter to police. The police detained him for 1 day without food or water. He was bailed out. He moved to live in Sialkot City where he lived for nearly 2 months. He discovered that his enemies were still looking for him. He took his friends’ advice and left Pakistan for his safety. He went to China and stayed there for about a year. Later he came to Hong Kong by boat.

7.  Details of his claim are set out in paragraph 6 of the Notice of Decision dated 20 November 2014 (“the Director’s 1^st Decision”).

The Director’s Decisions

8.  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”).

9.  By way of the Notice of Decision dated 30 November 2014 (“the Director’s 1^st Decision”), the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. The Director found that the applicant’s future risk is low, having regard to his past experience in Pakistan; that state protection will be available; and that internal relocation will be viable. [12]-[23]

10.  By way of the Notice of Further Decision dated 11 April 2017 (“the Director’s 2^nd Decision”), the Director dismissed the applicant’s claim on BOR 2 risk for the reason that there was no evidence to establish that the applicant has a personal and real risk protected under BOR 2 risk. [6]

The Board’s Decisions

11.  The applicant appealed the Director’s 1^st Decision to the Board. On 29 March 2016, the Board conducted an oral hearing for his appeal.

12.  Having considered the evidence, the Board found that the applicant was not a truthful witness [19] as there were numerous statements which made his unreliable and had damaged his credibility [g]; and that his risk is localized and internal relocation is viable [35]-[38]

13.  On those reasons, by the Board’s 1^st Decision, the Board dismissed his appeal against the Director’s 1^st Decision. The applicant did not apply for judicial review of the Board’s 1^st Decision.

14.  The applicant appealed the Director’s 2^nd Decision to the Board. He was out of time and applied for extension of time. The Board applied section 37ZT of the Immigration Ordinance, Cap. 115 (“the Ordinance”) to the application. In section 5 of the Notice of Appeal, the applicant explained why he was late in filing the notice of appeal. He said that he had no place to live and he slept in star ferry park or subway. The Board rejected his explanation as it found that there was monthly subsidy from the government or some charitable organizations and he had stated his residential address at flat B, 11/F Parkes Building, 17-23 Parkes Street, Jordan, which is the same address in the Notice of Further Decision. The Board held that the appeal was unmeritorious and the applicant had deliberately misled the Board. It refused to extend time for him to file his notice of appeal, effectively dismissing his appeal against the Director’s 2^nd Decision.

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

15.  The applicant has filed Form 86 dated 22 October 2019 for leave to apply for judicial review of the Board’s 2^nd Decision.

16.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s 2^nd Decision.

DISCUSSION

17.  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).

18.  The Court will bear in mind that the Board’s 2^nd Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant applied to withdraw his application.

19.  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.”

20.  The Court has noted the decision of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, Hon Yuen JA, Lisa Wong J, 2 April 2019, in a case where the applicant was late in filing his notice of appeal to the Board and he had given no reason for such delay, the Court of Appeal held,

“20. … …it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

21.  However, I find that there is no merit in the applicant’s application for the reasons below.

22.  First, it is the same adjudicator who had considered his appeal against the Director’s 1^st Decision and he dismissed the appeal on the merits of the case. Therefore, he must be aware of the merits of the applicant’s claim for his appeal against the Director’s 2^nd Decision.

23.  Second, since his claim on BOR 3 has failed, there is no chance that he will succeed on his claim on BOR 2 risk as the Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, Hon Chu, JA (as she then was), Barma JA and Au JA ,7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

24.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 2^nd Decision.

DISPOSITION

25.  Even if the applicant had not applied to withdraw his application, I refuse to grant leave to the applicant to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss his application.