Khan Niaz Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1453/2019

[2024] HKCFI 913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1453 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 oral submissions by the Applicant in open court.

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 3 May 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 did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

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, aged 52, is a Pakistani. He last entered Hong Kong as visitor on 30 November 2006 and he overstayed since 15 December 2006. He was arrested by the police on 16 April 2007 for overstaying. The applicant made a torture claim on 25 April 2007, which was rejected on 25 July 2013. His subsequent appeal against the torture decision was also rejected. Subsequently, by way of written signification dated 2 August 2013 and by submission of the Supplementary Claim Form on 8 June 2018, the applicant made a further non-refoulement claim on all applicable grounds other than Torture risk[1]. The non-refoulement claim was made on the basis that, if refouled, the applicant would be harmed or even killed by a group of Shiya Muslim (“Shiya group”) who did not like him and his family.

5.According to the applicant, he and his family members were Sunni Muslim. In the afternoon of 15 May 2006, the applicant and his relatives bumped into the Shiya group. The Shiya group insulted the applicant’s group, which eventually led to a fight (“the fighting incident”). The applicant’s group was injured, but they neither sought medical treatment nor reported the case to the police. Three days after the fighting incident, his cousin was shot dead by members from the Shiya group. Although the killing was reported to the police, no one was arrested. The applicant encountered two more shooting incidents subsequently, but no one was injured. The next day straight after the last shooting incident, the applicant and his family moved to live in different places. While being away from his hometown, members of the Shiya group set fire on their family property. Eventually, the applicant left Pakistan for Hong Kong in November 2006.

6.The applicant maintained contact with his family members after he came to Hong Kong and was informed that the brother of his cousin was assaulted by the Shiya group in late 2012 with his skin burnt by hot iron.

7.The applicant was of the view that the police could not render any assistance to him because they were reluctant to take any action regarding the killing of his cousin and the senior police officers belonged to the Shiya group. He also considered internal relocation within Pakistan not viable.

8.Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 26 June 2018 (“the Director’s Decision”).

The Director’s Decision

9.The applicant had raised torture claim, which the Director had rejected. The Director further considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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. The Director found that (i) the low intensity and frequency of past ill-treatment from the Shiya group is indicative of a low future risk of harm upon his return to Pakistan [15]-[17]; (ii) state protection will be available to him upon his return [18]-[22]; (iii) internal relocation is viable [23]-[26] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2, BOR 3 risk [27]-[32] or Persecution risk [33]-[37].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 18 October 2018, the Board conducted an oral hearing with an interpreter.

12.Having considered the applicant’s evidence, the Board was convinced that the account of events given was credible. However, the Board failed to see that the applicant faced a genuine and substantial risk in Pakistan given the past action of the Shiya group [23]-[27]. In any event, state protection and internal relocation were also available to the applicant [28]-[33].

13.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirement under BOR 2, BOR 3 risk or Persecution risk [9]-[16], [34]-[36]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

14.The applicant has filed Form 86 dated 28 May 2019 for leave to apply for judicial review of the Board’s Decision.

15.In the affirmation in support of his application, the applicant said that his life is threatened by the opposition; that he was beaten badly and his life is in danger.

DISCUSSION

16.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).

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

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.Having considered the evidence, the Board had given its reasons to support its view that the applicant is not facing any genuine and substantial risk:

“24. The low intensity and frequency of past ill-treatment suggest that future risk of the Petitioner being physically harmed is low. In all the shooting incidents, the Petitioner was not the target and he was not injured. It could be inferred that the Petitioner was never a target of the Shiya group.

25. When the Petitioner’s house was set on fire, the Petitioner’s family was not in the house. … the Shiya group chose to damage the house only when the Petitioner’s family has left. It indicates that the Shiya group only wanted to send warning to the Petitioner rather than physically harming the Petitioner.

26. Also, there is no evidence indicated that the Shiya group was acting in any official capacity. The Petitioner’s conflict with the Shiya group was private one. There is no reason that the government would involve in it.

27. For the reasons stated above, it is my considered view that there is not a genuine and substantial risk that the Petitioner would be harmed or killed by the Shiya group.”

20.The applicant has not given any valid reason to challenge the Board’s finding of the facts above. There is no reason that the court should interfere with the Board’s Decision. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

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

Dated 26^th day of March 2024

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