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

HCAL 2012/2019

[2024] HKCFI 2815

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2012 OF 2019

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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 14 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 2 October 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, aged 49, is a Pakistani. He entered Hong Kong as a visitor on 17 January 2004 and overstayed since 28 January 2004. The applicant was arrested by the police on 16 March 2005 and was sentenced to imprisonment of 9 months for using a Hong Kong identity card relating to another person on 20 July 2005. The applicant lodged a torture claim on 28 September 2005, which was rejected on 8 May 2012. His subsequent appeal was also dismissed on 27 July 2012. On 14 February 2013, the applicant made a further non-refoulement claim on all applicable grounds other than Torture risk[1]. The claim was made on the basis that, if refouled, he would be harmed or even killed by the Sunni Muslims in his locality because one of his brothers (“the brother”) was involved in murdering a Sunni Muslim during a land dispute.

5.According to the applicant, he and his family were Sunni Muslims, but the brother had subsequently converted into a Shia Muslim. In early 2002, the applicant had a fight with some Sunni Muslims in his locality because they reported to his father that the brother had attended a funeral prayer meeting of a Shia. On 6 August 2002, the applicant was informed that the brother was involved in killing a Sunni Muslim during a land dispute. On the next day, the applicant was beaten up by some Sunni Muslims in his locality while he was returning home on his motorcycle. He immediately went to his aunt’s home and subsequently rented a flat near the hospital where he received treatment for his injury. In February 2003, the applicant relocated to his uncle’s home. Eventually, upon assistance from the brother, who was already in Hong Kong at that time, the applicant left Pakistan and arrived in Hong Kong on 17 January 2004.

6.While in Hong Kong, the applicant learnt that his uncle and one of his distant relatives were killed by friends of the deceased Sunni Muslim. The applicant was of the view that the police would not protect him because they had bias towards the Sunni Muslims. He also feared to be detained given that the brother was accused of murder. Meanwhile, the applicant considered internal relocation not viable as well.

7.Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 17 January 2017 (“the Director’s Decision”). 

The Director’s Decision

8.The Director 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”).

9.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 Sunni Muslims in his locality indicated a small future risk of harm upon his return to Pakistan [15]; (ii) even if the applicant was detained by the police, it was merely for investigation purpose of the suspected murder of the brother [16]; (iii) there was no corroborative evidence to support that his uncle and distant relative died in the way as claimed by the applicant [17]; (iv) state protection would be available [18]-[22]; (v) internal relocation would be viable [23]-[28] and (vi) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [29]-[33] or Persecution risk [34]-[38].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 25 January 2019 and 2 April 2019, the Board conducted oral hearings.

11.The Board considered that the applicant had exaggerated the claimed risks he would face upon return to Pakistan. In particular, he did not convert to a Shia and was still a Sunni. It was also implausible that his other siblings and daughter could remain unharmed throughout all these years. Furthermore, the available medical evidence showed that the applicant’s health problem was not the result of his injuries sustained from the assault in 2002 [37]-[40].

12.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk or Persecution risk [41]-[49]. In any event, state protection and internal relocation would also be available according to the country of origin information [50]-[57].

13.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 16 July 2019 for leave to apply for judicial review of the Board’s Decision.

15.In his affirmation in support of his application, the applicant raised the grounds below.

(1)  Procedural impropriety: failing to take into consideration right to life; failing to make sufficient inquiry into the relevant country of origin information (“COI”) on the sectarian killings between Sunni and Shia Muslim; there was no evidential basis for the assessment of BOR 3 risk; and failing to give sufficient reasons for assessment of BOR 3 risk

(2)  Error/Misdirection in law: failing to take into account the psychological strain and threats to her personally.

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 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).

17.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 that the Board was wrong because it did not accept his evidence.

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.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. The grounds that the applicant has raised under paragraph 15 are only his bare assertions without any evidence in support. They are not valid reasons to challenge the Board’s Decision.

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

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

DISPOSITION

22.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.