Tufail Asam Alias Asim v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1149/2019

[2023] HKCFI 2240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1149 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 present in open court;

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

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 8 April 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. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing was fixed for him and he appeared before the Court on 8 March 2023.

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 was previously deported back to Pakistan from Hong Kong on 30 October 2001 and last entered Hong Kong illegally in late December 2014. On 4 January 2015, he was arrested by the police and found to be in breach of his previous deportation order. On 11 November 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Faheem Nawaz (“FN”), Khawaja Muhammad Asif (“KMA”), and people from the Pakistan Muslim League (Nawaz) (“PML(N)”) because he shifted his support to Pakistan Tehreek-e-Insaf (“PTI”).

5.According to the applicant, his family had been the supporters of PML(N). When he was around 17 or 18 years old, he followed his elder brother and joined the young wing of PML(N). Through the organization, he knew FN and KMA, who often organized PML(N) rallies and gatherings. In around 2013, the applicant followed his elder brother and switched his support to the PTI. They started attending the PTI rallies and gatherings as there was an election in May 2013. Before the election, the applicant and his elder brother started receiving threatening phone calls. However, they simply dismissed the phone calls as they believed the PTI would win. Yet, just a few days before the election, the applicant and his elder brother were arrested by the police and detained in the police station due to the false charges filed against them by the PML(N) members. They were both badly beaten by the police. While the applicant and his elder brother were bailed out after paying the bribes to the police, the threats continued.

6.On 27 June 2013, while the applicant was smoking outside his house, two masked people on a motorbike suddenly fired gunshots at him. The applicant did not sustain injuries but felt panic and reported the incident to the police station. The complaint to the police was however of no avail. Out of fear, the applicant eventually fled to Hong Kong for protection. While he was in Hong Kong, he learnt from his wife that his elder brother died from poisoning a week after a meeting with the PML(N) elders. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 24 April 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm was assessed to be low. In elaboration, the Director found that (i) the evidence showed that there was a low chance that his claimed fear of harm would be materialized [16]-[19]; (ii) state protection would be available to him [20]-[26]; and (iii) internal relocation was a viable option [27]-[32].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 1 August 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter and was also represented by his duty lawyer [11].

10.The Board recapped the applicant’s claim and his supporting documents, as well as his submissions before the Director [29]-[37]. It also considered the applicant’s grounds of appeal and both parties’ written submissions [49]-[56]. In addition, the Board considered the additional country of origin information (“COI”) submitted by the applicant [58]-[60] and summarized his oral testimonies [61]-[75] and his answers to the Board’s inquires [75]-[109].

11.Having considered all the evidence and the parties’ closing submissions [110]-[130], the Board mad the following findings. At the outset, the Board stated that it had significant concerns over the applicant’s credibility [135]. In particular, the Board noted that the applicant had two passports using different names and attempted to fraudulently use a passport not belonging to him in another identity. It rejected the applicant’s explanations of using these forged documents as nonsensical and opined that this cast doubt on the applicant’s credibility [136]-[138]. The Board also refused to accept the newspaper article allegedly used in support of his claimed shooting incident as it had no corroborative value, was self-evident and contradicted with the applicant’s own evidence [139].

12.As to the applicant’s political knowledge, the Board noticed that his answers to the Board were not persuasive enough to support a claim that he was actively involved and committed to the PTI [140]-[141]. Further, the Board rejected the applicant’s claim on his elder brother’s death on the basis that it lacked documentary proof and that his evidence on this aspect was inconsistent [142].

13.In light of the aforesaid, the Board rejected the applicant’s claimed political involvement and future involvement. It thus refused to accept that the applicant faced any real or substantial risk of harm on the basis of any political opposition [145]. In addition, on the limited evidence before it, the Board refused to accept that the applicant’s elder brother died as a consequence of being poisoned by his political opponents in the PML(N) [146].

14.Therefore, after evaluating the past events, the Board found that the applicant would not face any real or substantial risk of harm upon refoulement [148]. Alternatively, as shown in the COI, the PML(N) lost the election held on 25 July 2018 and the PTI was in power. It was also speculative and far-fetched that FN would take revenges against him [149]-[150]. In any event, state protection would be available to the applicant [151]-[154].

15.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

16.The applicant has filed Form 86 dated 30 April 2019 for leave to apply for judicial review of the Board’s Decision.

17.In his affirmation and in support of his application, the applicant said he considered that the Board’s Decision was unfair. He had referred to the findings of the Director and the Board for his argument. Since the Court should only consider the Board’s Decision in this application, I shall therefore refer to his arguments in relation to the Board, unless the Board’s decision is related to the Director’s Decision. The following are his reasons.

(1)  The Board had not taken his unique situation into account fairly and sequentially.

(2)  In determining his Pakistan Passport issue as to whether Tufail Asam and Asim are the same person, the Board had failed to clarify this issue with the Embassy, or to obtain COI on this matter.

(3)  The Board, having agreed that the passport identity issue is unrelated to his claim, had, nevertheless consider his overall credibility of his evidence for his claim.

(4)  The Director had not made adverse finding on his credibility, the Board should not have made adverse finding on his credibility.

(5)  The Board should not have adverse finding in his credibility simply because he was unable to produce a death certificate of his brother’s death as he was away from Pakistan.

(6)  The Board had not taken into account that his brother was killed because of his political association with the PLM(N), and therefore since he had also done things for the party, he would also be the target of the rivalry party.

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 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).

19.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he just wants to stay in Hong Kong for a little bit longer because is situation is getting worse.

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.As to the grounds in paragraph 17, ground (1) is his opinion without any evidence in support. The other grounds are the ways the Board had adopted to assess his evidence, which is within the Board’s province, with which the Court should not interfere as according to the Court of Appeal in Kartini. The applicant was legally represented before the Board. Such legal issues should have been taken care of by his legal representative at the hearing before the Board. In any event, the Board has founded that state protection is available to him and he has raised no objection to this finding. He is therefore not entitle to non-refoulement protection.

22.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

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

Dated the 7^th day of September 2023

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