Sherwani Farrukh Khan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1022/2022

[2023] HKCFI 2615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1022 of 2022

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;

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 16 August 2022 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 to appear before the court on 17 May 2023. However, he was absent on the hearing date without prior notice to the court. Therefore, his application is dealt with on the papers.

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 entered Hong Kong illegally on 5 November 2009. On the same date, he surrendered to the police for illegal remaining. However, there was no arrival movement record found for the applicant. After examination, on 7 November 2009, he was refused permission to land and was detained pending removal. On the same date, he raised a torture claim. Thereafter, on 5 December 2010, he requested to withdraw his torture claim. On 10 February 2011, he was informed by the Immigration Department that his claim was treated as closed. On 11 April 2011 and 31 May 2011, the applicant requested to re-open his torture claim. Nevertheless, as there was no new information, and he could not be reached at that time, his request was not acceded to.

5.On 3 April 2022, the applicant was arrested by the police. On 14 April 2022 and 10 May 2022, he requested to re-open his non-refoulement claim. on 12 May 2022, the Immigration Department allowed him to reopen his claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his cousins, Mozam and Tokir, due to a property dispute.

6.According to the applicant, both Mozam and Tokir had political affiliations. His dispute with them arose from their grandfather’s distributions of the properties. He claimed that his grandfather passed away without a will. Since the properties ought to be distributed equally among the grandchildren under the Pakistani law, his cousins were holding a grudge as the applicant’s father managed to control and occupy 16 acres of his grandfather’s legacy and house. In 2004, Tokir threatened to kill the applicant if he failed to transfer the properties to Mozam. He left without hurting the applicant physically.

7.In April or May 2006, the applicant was blindfolded with a bag by Mozam and four other men, who assaulted him with stick objects for around seven minutes. Mozam also fired two gunshots at the sky, threatening to kill the applicant if he did not transfer all the properties to Mozam. After the attack, the applicant escaped to Lahore, where he learnt from his mother that the police officers came to find him and he was under the impression that the police visited him to eliminate the evidence against Mozam.

8.The next day, the applicant returned to Sialkot. He encountered Mozam who again made two gunshots in the air. Nothing eventful happened until the end of 2007, when the applicant was attacked by two men with face masks on the street. They splashed flammable liquid on the applicant, leaving burn marks on his elbows, left leg and forehead. Later, between the end of 2007 and August 2009, the applicant claimed that there were multiple harassments from Mozam’s people. Out of fear, he eventually fled to Hong Kong for protection. He further explained that the previous withdrawn of his torture claim was due to his mother’s information that the dispute with Mozam was solved. Yet, it turned out to be the contrary. Thus, the applicant decided to seek protection in Hong Kong. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 27 June 2022 by the Director (the “Director’s Decision”).

The Director’s Decision

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

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

ii.  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”);

iii.  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

iv.  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”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the low frequency of past ill-treatments indicated an unlikelihood of future risk of harm [16]; (ii) it was unlikely that his enemies intended to cause harm or even kill him [17]; (iii) there was no evidence that his enemies could locate him everywhere in Pakistan [18]; (iv) state protection would be available to him [19]-[22]; and (v) internal relocation was also a viable option [23]-[24].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 12 August 2022, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [32].

12.Having considered the evidence, the Board made the following findings. At the outset, the Board accepted that the land disputes in Pakistan were prevalent and this aspect was consistent with the applicant’s claim [34]. However, it refused to accept the applicant’s evidence as it was unreliable. In particular, the Board noted that the applicant had delayed 12 years in making his non-refoulement claim. The Board also considered that it was implausible that the land in dispute was still registered under his grandfather’s name. His explanation that the delay in transferring the legal titles was caused by a court case was a new claim and the Board rejected this new claim as he did not mention it before the Director nor did he produce any court documents in support. Meanwhile, his accounts as to when the dispute with his two cousins first started were inconsistent. On the applicant’s own evidence, he continued to live under the same roof with his two cousins, who allegedly intended to kill him, throughout the period of the claimed past harms. His subsequent explanation was changing and unreliable. Also, the applicant’s assumption that the police was bribed by Mozam was a pure speculation [35].

13.In light of the aforesaid, the Board found that the applicant was not a credible witness. In passing, the Board rejected the applicant’s request for additional time to provide supporting documents as he had ample opportunities before the hearing to gather the documents but did not do so [37].

14.On the basis of lack of credibility, the Board rejected the applicant’s claim and dismissed his appeal.

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

15.The applicant has filed Form 86 dated 29 September 2022 for leave to apply for judicial review of the Board’s Decision.

16.In his affirmation and in support of his application, the applicant attached a copy of the Board’s Decision without raising any specific ground.

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 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).

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

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 Board had, for the reasons given in paragraph 12 supra, rejected the applicant’s evidence as incredible. The applicant has raised no valid reason to challenge the Board’s Decision.

21.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.

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

CONCLUSION

23.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 19^th day of October 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