Niazi Faizan Sher v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 2405/2018

[2020] HKCFI 1653

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2405 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 25 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office.

2.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 17 September 2019.

3.Leave was granted to the applicant to amend Form 86 and delete the Director of Immigration as the respondent and delete the Torture Claims Appeal Board as the interested party.

The applicant

4.The applicant is a national of Pakistan. He came to Hong Kong from China Illegally on 26 March 2015. He was arrested by police on the same day and was referred to the Immigration Department for investigation on 28 March 2015. He lodged his non‑refoulement on 30 March 2015.

5.He claimed that if refouled, he would be harmed or killed by his relative, Tanveer, who was associated with Pakistani Muslim League (N)(“PMLN”) because he supported Tanveer’s rival political party Pakistan Tehreek-e-Insaf (“PTI”) and because of a land dispute.

6.He and Tanveer’s dispute arose of their differences in political beliefs. Tanveer’s family also took possession of the land owned by his father. He was trying to reclaim possession of it. Those incidents which led him to leave Pakistan for Hong Kong are:

1.In December 2012, he was attacked by 10-12 PMLN members with wooden sticks. He suffered bruises all over his body. He reported the matter to police, which took no action.

2.In February 2013, he was slapped and punched by the same PMLN members and he sustained internal muscle injuries.

3.In early 2013, Nadeem Khadim, who was of The Member of the Parliament Assembly of the PMLN had allowed his bodyguard to shoot him and other PTI members. Around 10 PTI members were injured. No action was taken by police against Khadim.

4.In 2013, the PMLN won the general election and became ruling party. They took revenge on the PTI supporters and suppressed PTI.

5.In August 2014, he was beaten up by members of PMLN over the dispute of the land. He sustained a dislocation in his shoulder and fractures on the fingers of his left hand. The police also took no action.

The Director’s Decision

7.The Director considered his application in relation to the following risks:

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

b.Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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”).

8.By Notice of Decision dated 8 August 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 24 July 2018.

10.By Decision dated 25 October 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence. It came to the conclusions below.

1.The Board accepted his evidence about the incidents that caused him to leave Pakistan. However, it was satisfied, given the Country of Origin Information (“COI”) about the situation for PTI members in the Punjab, that the aspects of his claims were greatly exaggerated [31].

2.The Board did not accept his evidence about violence targeted at PTI members by PMLN members in his area because COI did not support his evidence [33].

3.It was reported that PTI had won the elections in Pakistan the day after the hearing. The Board considered that state protection would be available to him should he return to Pakistan [35].

4.The Board, as according to COI, did not accept a low level PTI member as the applicant would be targeted by PMLN members everywhere in Pakistan [36].

5.The Board was not satisfied that he had established that there were substantial grounds which supported the conclusion that he would face a real risk of ill‑treatment as claimed if he returned to Pakistan [37].

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 30 October 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of this application, he said that his life remained in danger if he returned to Pakistan.

DISCUSSION

14.The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the Board. His lawyer had explained the Director’s Decision to him. His friend had explained the Board’s Decision to him.

15.However, he said that the Adjudicator had misunderstood his evidence as shown by the facts stated in the Board’s Decision, in particular, paragraphs 21, 26, 27 and 33. In gist, he argued that his family is not living in Pakistan, he did not mean that if PTI won the election, he would be Okay. He only means he would be better if PTI won the election.

16.The applicant has not set out the above issues in his affirmation in support of his application. There is no evidence before me what he said at the hearing. He agreed that there was an interpreter at the hearing, the evidence as set out in the Board’s Decision should be accepted in the absence of other evidence to show to the contrary. The applicant’s complaint cannot sustain. However, even if what the applicant’s complaint were true, I consider that given what he said were right, such misunderstanding would not alter the finding of the facts by the Board. The Board relied on the COI to conclude that he would not be subjected to the risks he claimed if he returned to Pakistan. What he said at the hearing is quite irrelevant. They cannot alter the facts in the COI.

17.It is obvious that the Board, having accepted the facts he claimed, had come to its conclusion that he would not be subjected to the risk he claimed if he returned to Pakistan.

18.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.”

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

CONCLUSION

20.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

Dated the 27^th day of July 2020

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