Mi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1652/2019

[2023] HKCFI 2950

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1652 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:

1.  the applicant’s application for leave to apply for judicial review of the Board’s Decision be refused; and

2.  the anonymity Order dated 1 May 2020 be lifted and set aside.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 25 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing date was fixed and the applicant appeared before the Court on 17 May 2023.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of Pakistan. He entered Hong Kong illegally on 9 October 1998 and was permitted to stay until 9 November 1998. He did not depart and had overstayed since 10 November 1998. On 4 October 2005, he was arrested by the police for overstaying. On 17 November 2005, he raised a torture claim which was eventually rejected. On 22 October 2013, he lodged a non-refoulement claim. Thereafter, after the applicant was released on recognizance, he absconded. On 23 January 2018, he was arrested by the police. The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by Zulfiqar’s family and the Pakistani police as he was suspected to be involved in an attempted murder in which Zulfiqar was injured.

5.According to the applicant, the dispute arose from a fight between his friend Tahir and Zulfiqar. Tahir had an affair with Zulfiqar’s sister, a relationship which Zulfiqar disapproved. Their fight happened in January 1996. After the fight, Tahir asked the applicant to accompany him to Zulfiqar’s house that night with an aim to reconcile with Zulfiqar. However, when they arrived at Zulfiqar’s house, Tahir fired five or six bullets at Zulfiqar, injuring his arm and ankle. After the shooting incident, the applicant went into hiding.

6.A few days later, Tahir told the applicant that they could consider surrendering to the police through the local leader of the Pakistan People’s Party (“PPP”), Mian. Mian promised to help them as Tahir’s brother was killed in a car accident while going to a PPP gathering. However, Mian never helped them as he was close to Zulfiqar’s family. As a result, when the applicant surrendered, he was immediately arrested by the police. During detention, the applicant was ill-treated by the police. He was remanded the next weeks and around eight to ten police officers took turns to force him to confess.

7.The applicant was later brought to the court and was ordered to remain in custody for a longer period. He stated that he was not offered legal representation from the government but he found his own lawyer. After he was brought to detain in the police station, he heard the police officers saying that they would shoot him if he did not confess. A week later, he was brought to the court again. This time, he was legally represented but he was refused bail as the charges against him were serious. His lawyer informed him of the complaint lodged against the police officers who ill-treated him.

8.The applicant was sent to Kot Lakpat jail after the court hearing. Two and a half month later, he was granted bail. He had been reporting to the court every one or two months for two years. He attempted to negotiate a settlement with Zulfiqar’s family but they refused. He also learnt that Zulfiqar’s family successfully got Tahir’s bail canceled and they threatened to do the same to the applicant.

9.Feared that he would be arrested when reporting to the court, the applicant fled to Hong Kong. While he admitted the police might not be looking for him now, his name was still on the wanted list and he had jumped bail. Besides, he was afraid that Zulfiqar would still be looking for him. Thus, he decided to seek protection in Hong Kong. Details of his claim are set out at paragraph 9 of the Notice of Decision dated 11 July 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

(i)  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”);

(ii)  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

(iii)  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”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) his claimed risk of harm from Zulfiqar, his family and the police upon refoulement was groundless [15]-[20]; (ii) state protection would be available to him [21]-[24]; and (iii) internal relocation was a viable option [25]-[27].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board. On 18 February 2019, the Board conducted an oral hearing for his appeal, during which he answered some of the Board’s inquiries [131].

13.The Board recapped the applicant’s claim and his personal backgrounds [61]-[130]. Having considered all the evidence, the Board made the following findings. It found that the dispute was private in nature without state involvement [151]; that Zulfiqar’s family possessed no intention to revenge the applicant [152]; that after he was released on bail the applicant was able to live in the same area with Zulfiqar’s family for two years without encountering any problems [153]; that Zulfiqar’s family had ample opportunities to harm or kill the applicant but they did not act on it [154]; that there were no threats uttered by Zulfiqar’s family [155]; that the applicant’s staying in the same area indicated that he had no fear of harm from Zulfiqar’s family or the police [156]; that it had been more than two decades since the applicant left Pakistan and the risk of harm, if any, became remote [157]; that the applicant’s evidence on the claimed ill-treatments from the police was odd and if the ill-treatments existed it was merely individual acts [158]-[166]; that the applicant did not experience any problems with the police after he was released on bail [167]-[168], which indicated that the police no longer had adverse interests in him [169]; that he did not seek medical treatments after he was released, despite the alleged severe injuries sustained [170]-[171]. Thus, it showed that the applicant’s injuries were not as serious as je claimed[173]; that on the applicant’s own evidence, the police no longer targeted him [174]-[176]; that there was no evidence of unfairness of the court procedure [177]-[178]; that it was a pure speculation that the applicant would be targeted by the PPP [179]-[184]; that PPP was no longer in power [185]; that the absence of the applicant’s report to the police also undermined his claimed fear of harm [186]-[191]; and that in conclusion the applicant was unlikely to be arrested upon refoulement and, if he was, it was a legitimate investigation. Besides, there was no evidence that he would not face unfair trial [193]-[194].

14.In any event, the country of origin information showed that state protection and internal relocation were both viable options for the applicant [196]-[277].

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 17 June 2019 for leave to apply for judicial review of the Board’s Decision.

17.In his affirmation in support of his application, the applicant did not raise any specific ground.

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 was allowed to speak freely before the Board and he had been in Hong Kong for 25 years. He further said that the Board did not consider his evidence and he is not sure if his enemies are still alive there.

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.The Board, for the reasons given above, did not believe his evidence on the facts of the applicant’s case. The applicant has not raised any valid ground to challenge the Board’s Decision.

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 and the anonymity order dated 11 May 2020 be lifted and set aside.

Dated the 23^rd day of November 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