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

HCAL 2173/2019

[2024] HKCFI 3306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2173 OF 2019

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BETWEEN

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J U D G M E N T

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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 this Court on 6 November 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 39, is a Pakistani. He entered Hong Kong illegally on 24 July 2006 and was arrested by the police on 14 January 2008. The applicant made a torture claim on 22 February 2008. The claim was made on the basis that, if refouled, he would be harmed or even killed by the members of the Pakistan Muslim League (Nawaz) (“PML(N)”) because he refused to join them. Upon the commencement of the unified screening mechanism, the applicant’s torture claim had been taken to be a non-refoulement claim and was assessed on all applicable grounds.

5.According to the applicant, he joined the Pakistan Peoples Party (“PPP”) in around 2003. Due to his success in gathering votes for PPP, the applicant soon became a target of PML(N). In 2004, he was assaulted twice by PML(N) members. Between September 2004 and October 2004, he was arrested by the police twice and beaten up. In early 2005, the applicant was abducted by 7-8 unknown persons and beaten up by them. His family members were also harassed by the police, with his brother beaten up and his father threatened. In July/August 2005, although the applicant relocated away from his hometown, he still found himself being followed. To avoid further threats from PML(N) members, the applicant left Pakistan in July 2006.

6.While in Hong Kong, the applicant was informed by his brother that some PML(N) members had come to enquire his whereabouts. He was of the view that the authorities could not protect him, otherwise PML(N) members would have stopped searching for him.

7.Details of the applicant’s story can be found in paragraph 11 of the Director’s Decision dated 23 February 2015 (“the Director’s 1^st Decision”).

The Director’s Decisions

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”);

(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 1^st Decision, the Director dismissed the applicant’s claim on BOR 3 risk, Persecution risk and Torture risk. The Director found that (i) the claimed prominence of the applicant in attracting the attention of PML(N) members was without basis [17]; (ii) the low intensity and frequency of past ill-treatment from PML(N) members indicated a small future risk of harm upon his return to Pakistan [18]; (iii) the misconduct of individual police officers could not represent the stance of the whole Pakistani police force [19]; (iv) state protection would be available [20]-[22] and (v) internal relocation would be viable [23]-[28].

10.In the Notice of Further Decision dated 26 October 2016, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return.

The Board’s Decision

11.The applicant appealed the Director’s 1^st and 2^nd Decisions to the Board. On 6 January 2017 and 16 January 2017, the Board conducted oral hearings.

12.Although the Board noted that the available medical evidence supported the applicant’s claimed injuries, he failed to discharge the burden of proof that PML(N) members were involved in inflicting those injuries [45](sic). In any event, the applicant’s credibility was in doubt because (i) the motivation for PML(N) members to harm him was considered low as evidence showed that he was merely a grass-root PPP supporter; (ii) his claim that his brother was troubled to a greater extent by PML(N) members had not been substantiated; and (iii) his evidence about the circumstances of the assault was inconsistent [46](sic)-[50](sic).

13.The Board found that even if the applicant did suffer some injuries as claimed, there was no evidence indicating that such ill-treatments were politically motivated or that PML(N) were responsible. Furthermore, internal relocation would also be available. Based on such findings, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [51](sic)-[57](sic).

14.The Board therefore dismissed the applicant’s appeal and confirmed the Director’s 1st and 2nd Decisions.

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

15.The applicant has filed Form 86 dated 30 July 2019 for leave to apply for judicial review of the Board’s Decision.

16.In his affirmation in support of his application, the applicant simply repeated his story of coming to Hong Kong without specific reasons to challenge the Board’s Decision.

DISCUSSION

17.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).

18.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 he has disclosed his facts to the Board. But the Board did not consider the evidence well enough.

19.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.”

20.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.

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

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

DISPOSITION

23.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.