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

HCAL 1667/2019

[2024] HKCFI 1515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1667 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 the Applicant being absent 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 24 October 2018 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 date was fixed for him to appear before the Court on 22 April 2024. However, he was absent without prior notice to the Court. I shall deal with his application on paper.

The applicant

3.The applicant, aged 43, is a Pakistani. He entered Hong Kong illegally on 21 August 2015 and was arrested by the police on the same day. The applicant lodged a non-refoulement claim on 25 August 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by the family of his wife (“Suraya Bibi”), particularly her brother because the applicant married her without proposing to her family and later refused to comply with their request for divorce.

4.According to the applicant, he first met Suraya Bibi while visiting his sister. Suraya Bibi’s father was deceased and her brother was her guardian. As far as the applicant was aware, Suraya Bibi’s brother was a dedicated supporter of Pakistan Muslim League (N) (“PML(N)”). After dating Suraya Bibi in low profile for two years, the applicant married her in 1999 without proposing to her family. Suraya Bibi’s family was seriously offended and infuriated by their marriage because in Muslim culture, marriage without consent of family members is deemed a huge humiliation and disgrace to one’s family. Since then, the applicant received threats from Suraya Bibi’s brother from time to time.

5.In 2000, while the applicant went to visit his sister, he met Suraya Bibi’s brother who beat him up with punches and kicks. Suraya Bibi’s brother also verbally abused the applicant with foul language and death threatened him. The applicant had bruises all over his body as a result. He self-treated his wound, but did not seek any medical treatment, nor did he report the incident to the police.

6.The applicant tried to pacify Suraya Bibi’s family regarding the marriage, but they demanded that he divorce Suraya Bibi and threatened to kill him if he refused. From time to time, Suraya Bibi’s brother would send people threatening his life. Whenever the applicant met Suraya Bibi’s family, they would scold him and use derogatory language against him.

7.In January 2012, Suraya Bibi’s brother attacked the applicant again when he saw him near his sister’s home. He struck the applicant on his head and body with a baton and insulted him. The applicant had bruises all over his body and an open wound on his head. He attended a private clinic for medical treatment. Again, the applicant did not report the incident to the police.

8.The applicant had not been physically harmed since then, though he was humiliated on a frequent basis. He intended to flee Pakistan originally in 2013, but he did not know how to arrange for his journey. In mid-2015, his wife and his friends suggested him to leave Pakistan for Hong Kong. The applicant therefore made arrangements accordingly.  He left for Mainland China on 18 August 2015 and eventually sneaked into Hong Kong on 21 August 2015.

9.The applicant maintained contact with his wife, who informed him that her brother still hated him and wanted to take revenge by killing him.

10.The applicant was of the view that the police would not render any assistance to him because they would not help in cases concerning an affair with a girl. In any event, the police would favour Suraya Bibi’s brother given that PML(N) was the ruling party in Pakistan. The applicant also considered internal relocation within Pakistan not viable because Suraya Bibi’s brother could utilise his PML(N) network to locate him all over the country. 

11.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 24 October 2017 (“the Director’s Decision”).

The Director’s Decision

12.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”).

13.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 Suraya Bibi’s brother and his family indicated that the applicant’s perceived risk of harm was not as imminent and substantial as claimed [12]-[13]; (ii) his behaviour was inconsistent with a person who was genuinely in fear [14]; (iii) state protection would be available to him upon his return [15]-[18]; (iv) internal relocation would be viable [19]-[22] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [23]-[28], Persecution risk [29]-[33] or Torture risk [34]-[36].

The Board’s Decision

14.The applicant appealed the Director’s Decision to the Board. On 24 September 2018, the Board conducted an oral hearing.

15.The Board noted from the proof of marriage that the applicant married Suraya Bibi on 20 February 1999 and the applicant’s brother was a witness to the marriage. Suraya Bibi did not return home after the marriage and her brother made a report to the police that she had been abducted. As a result, the applicant’s brother sent the proof of marriage to Suraya Bibi’s brother [44].

16.Since then, Suraya Bibi’s brother and the police started harassing the applicant. In response, Suraya Bibi lodged a writ in the High Court, after which the police ceased their harassment while the harassment from Suraya Bibi’s brother continued [45].  The applicant claimed to be attacked by Suraya Bibi’s brother for the first time in about 2012, during which he was hit on the head with a stick 3-4 times. He received 14 stitches and medicine thereafter [47]. In May or June 2015, the applicant was attacked by Suraya Bibi’s brother for the second time with fists. The applicant sustained no injuries although he went to a clinic and received some medicine [48]. The applicant also revealed for the first time during the hearing that Suraya Bibi’s brother moved his family and his business elsewhere in 2005, so that the applicant had no contact with him most of the time [53]. Furthermore, the applicant told the Board that his wife had advised him to leave Pakistan three times in 2006, 2009 and 2015 [54].

17.The Board accepted the marriage between the applicant and Suraya Bibi and that the latter had lodged a writ in the High Court in February 1999 to prevent the harassment from the police and her family. Yet, apart from these two matters, the Board found the applicant’s evidence to be wholly unreliable [58]. There were material inconsistencies in his evidence regarding (i) the time and circumstances of the two attacks by Suraya Bibi’s brother; (ii) the relocation of the family and business of Suraya Bibi’s brother in 2005 and (iii) when his wife asked him to leave Pakistan [59].

18.Based on such findings, the Board considered that the applicant was not a witness of truth and his claims were fabricated [60]. They concluded that the applicant’s case failed to meet any of the requirements under Persecution risk [12]-[14], [64]-[65], BOR 2 and BOR 3 risk [15]-[19], [24]-[25], [66] or Torture risk [20]-[23], [67]. The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

19.The applicant has filed Form 86 dated 18 June 2019 for leave to apply for judicial review of the Board’s Decision.

20.In his affirmation in support of his application, the applicant said that the immigration officer had not made investigation into his situation without going there himself.

DISCUSSION

21.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

23.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.”

24.The Board had, in the Board’s Decision, set out the inconsistencies of the applicant’s evidence he gave to the immigration at the screening and before the Board. Having considered the evidence, the adjudicator found:

“60. These material inconsistencies, omissions and explanations cast doubt on the overall credibility of the appellant. What he presented to the Director as evidence and what he told me at the hearing is not credible and cannot be relied upon. He is not a witness of truth. In my view, his claims regarding the two attacks and threats by Sher have been fabricated. I am not persuaded that any ill-treatment or harm took place.

61. The passport of the appellant is in the possession of the Department and therefore, there is some documentary proof that he is a national of Pakistan. Beyond that, I conclude that he has not established any of the facts asserted.”

25.The applicant has not been able to raise any valid reason to challenge the Board’s Decision, in particular, the Board’s findings above. The applicant’s complaint in paragraph 20 cannot sustain because the Board can rely upon the Country of Information without going there personally.

26.There is no reason that this Court should interfere with the Board’s findings of the fact.

27.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

28.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 4^th day of June 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