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

HCAL 1818/2019

[2024] HKCFI 2322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1818 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 6 June 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. He appeared before the Court on 31 July 2024.

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, aged 31. He was arrested by police on 28 November 2015 for illegally remaining in Hong Kong. He was referred to the Immigration Department for investigation. He claimed that he had entered Hong Kong illegally from Mainland China. By written representation dated 1 December 2015, he lodged non-refoulement claim on the basis that, upon refoulement, he would be harmed or killed by his paternal uncle Akhtar Mehmood due to land dispute.

5.According to the applicant, he was a member of Pakistan Tehreek-e-Insaf (“PTI”). In early 2015, his paternal uncle, a member of an opposition party named Pakistan Muslim League Pakistan (Nawaz) (“PMLN”), invited him to join PMLN. He refused. On 15 June 2015, his uncle and two of his followers came to the field when he was cultivating. They stopped him from cultivating the land. His uncle claimed his right to the land. The applicant argued that he inherited the land from his father. They then hit the applicant. They left the field as other neighbours came to the scene. In the same evening, his uncle together with his two followers intercepted him somewhere near his house. They had pistols, poles and choppers. They attacked him with choppers. As a result, his thumb was cut badly. They fled as some people arrived at the scene and separated them from him. He had to receive medical surgery on his thumb. He reported the matter to nearby police. They refused to help him. He then moved to stay in Lahore for 3 months. He did not come across his uncle there. He then decided to leave Pakistan for China. He went through the Pakistani Immigration without any problem. He arrived at Gangzhou, from there he came to Hong Kong illegally.

The Director’s Decision

6.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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim as it was not substantiated. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatment were indicative of a small future risk of harm upon his return to Pakistan [11]; (ii) reasonable state protection would be available to him [12] – [15]; and internal relocation was available and reasonable for him [17]-[19].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 6 May 2019, the applicant appeared before the Board. He had answered questions from the Board with the assistance of an interpreter.

9.Having considered the evidence, the Board noticed discrepancies in his evidence. The Board concluded:

“60. In view of the discrepancies in his evidence, I find that the Applicant was not a witness of truth. While I accept that he has sustained an injury to his left wrist and thumb that required surgery, I do not find his description of the attack on him by Akhtar and his associates, which he says led to his injury, credible.

61. Nor do I find it credible that Akhtar has threatened the Applicant in relation to his membership of the PTI, nor do I find it credible that he has attacked the Applicant in relation to a dispute over his father’s land.

62. I conclude that the Applicant’s evidence of the manner in which he injured his wrist and thumb cannot be relied upon and that he would not be in any real risk of harm if he returns to his family home in Pakistan.”

10.On these bases, the Board dismissed his appeal.

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

11.The applicant has filed Form 86 dated 2 July 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

13.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).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant confirmed that he understood the Board’s Decision and he asked the Court to review it.

15.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.”

16.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

17.There is no reason that the Court should interfere with the Board’s finding of the facts.

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

CONCLUSION

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

The applicant appeared in person.