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

HCAL 2129/2019

[2024] HKCFI 2818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2129 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 19 July 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 40, is a Pakistani. He entered Hong Kong as a visitor on 25 April 2006 and overstayed since 24 May 2006. The applicant surrendered to the Immigration Department on 23 May 2016 and was sentenced to imprisonment of 9 months for overstaying on 24 July 2018. The applicant made a non-refoulement claim on 28 February 2019. The claim was made on the basis that, if refouled, he would be harmed or even killed by two of his Sunni Muslim neighbours (“Sunni neighbours”) because he belonged to the Shia Muslims.

5.According to the applicant, he and his family were Shia Muslims. The problem of the applicant began in 2003, when the Sunni neighbours intervened in his wedding proceeded under Shia Muslim customs. In 2004, the applicant was attacked by the Sunni neighbours and their gang on the street. Although the applicant reported the assault to the police, no action was taken by them. That evening, the Sunni neighbours came to threaten the applicant for reporting them to the police. Worried about his safety, the applicant relocated away from his hometown. Eventually, he left Pakistan for Hong Kong on 25 April 2006.

6.While in Hong Kong, the applicant maintained contact with his family. He learnt that his father was beaten and the front door of his house was set on fire because his family refused to disclose his whereabouts to the Sunni neighbours. The applicant was of the view that he could not seek protection from the police because they were corrupted and that most of them were Sunni Muslims. He also considered internal relocation not viable because Sunni Muslims are in the majority in Pakistan.

7.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 9 May 2019 (“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”); and

d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture 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 neighbours indicated a small future risk of harm upon his return to Pakistan [15]-[17]; (ii) the claimed risk of harm was too far-fetched given that there was no evidence that the applicant was a prominent figure among the Shia Muslims and that he had been out of Pakistan since 2006 [18]; (iii) state protection would be available [20]-[23]; (iv) internal relocation would be viable [19], [24]-[25] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [26]-[31], Persecution risk [32]-[36] or Torture risk [37]-[39].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. From letters received by the Board on 21 May 2019 and 10 June 2019, the applicant indicated that he did not require an oral hearing because he had no further information to provide. The appeal was therefore proceeded without a hearing [2].

11.The Board considered that the applicant was not a genuine protection seeker given that he only applied for non-refoulement protection 13 years after he came to Hong Kong [16]. Meanwhile, it was inconceivable that the applicant was the only one targeted by his Sunni neighbours because all his family members were also Shia Muslims [17]-[18]. Furthermore, the Board failed to see that the applicant’s Sunni neighbours had a real intention to seriously harm/kill him [21] and that there was no evidence that his Sunni neighbours had continued pursuing him after he went to Hong Kong, apart from the single occasion when his father was beaten and the front door of his house was set on fire [23]. In any event, internal relocation would also be available [24]-[31].

12.Based on the findings above, the Board concluded that the applicant’s claim failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [32]-[47]. 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

13.The applicant has filed Form 86 dated 25 July 2019 for leave to apply for judicial review of the Board’s Decision.

14.In his affidavit in support of his application, the applicant raised the grounds below insofar as the Board is concerned.

(1) The Board did not take into account his right to life and the decisions are not reasonable and unfair.

(2) The Board did not appreciate the issue of state acquiescence or the law enforcement agents. State protection would not be available to him.

DISCUSSION

15.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).

16.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. He further said that he had applied for dependent’s visa, but he had not obtained the result.

17.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.”

18.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. Those grounds under paragraph 14 are his assertions without any evidence in support. There is no valid ground from the applicant to challenge the Board’s Decision.

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

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

DISPOSITION

21.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.