Ullah Asad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1725/2024

[2025] HKCFI 79

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1725 OF 2024

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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 20 September 2024 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 December 2024.

The applicant

3.The applicant, aged 21, is a Pakistani. He entered Hong Kong illegally on 13 February 2024 and he surrendered to the Immigration Department on 15 March 2024. The applicant made a non-refoulement claim on 8 May 2024. The claim was made on the basis that, if refouled, he would be harmed or even killed by his cousin, who was affiliated to a Provincial Assembly member from Pakistan Muslim League (Nawaz) (“PML(N)”), because of a land dispute.

4.According to the applicant, his grandfather owned a piece of land (“the Land”). He did not appoint any successor to the Land when he passed away, but the applicant’s father and his siblings had a mutual understanding that they co-owned the Land. In around July 2023, the applicant’s cousin proposed to sell the Land, but the applicant’s father turned down his proposal. In January 2024, a few days after the applicant stopped his father from signing a document to sell the Land, he was assaulted by his cousin together with seven other people. Shortly thereafter, the applicant revenged by beating up his cousin together with his friends. The applicant then relocated to his friend’s place as he was in grave fear that his cousin would seek a revenge. Eventually, he left Pakistan and sneaked into Hong Kong from Mainland China on 13 February 2024.

5.The applicant last contacted his family in April 2024 and was told that his cousin was still looking for him. The applicant was of the view that he could not seek protection from the police because they would not dare to take any action against his cousin, who was powerful and influential. He also considered internal relocation not viable because his cousin could utilise the network of PML(N) to find him.

6.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 4 July 2024 (“the Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk. The Director found that (i) the action taken by his cousin indicated that he had no real intention to seriously harm or kill him [11]; (ii) there was no evidence showing that his cousin had the means to locate him nationwide in Pakistan [12]-[13]; (iii) state protection would be available [14]-[18] and (iv) internal relocation would be viable [19]-[24].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 10 September 2024, the Board conducted an oral hearing.

10.The Board accepted the applicant’s claim about the land dispute and that he had been assaulted by his cousin to a minor extent in the past [42]. However, the Board found no reliable evidence suggesting that the applicant would (i) be seriously harmed or killed by his cousin upon return to Pakistan; (ii) face risk throughout Pakistan; (iii) suffer injuries to the requisite level of severity and (iv) be denied state protection [43].

11.Based on such findings, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [45]-[55], [66]-[82], [93]-[96]. Furthermore, the country of origin information also indicated the availability of state protection [57]-[63], [65] and internal relocation [83]-[92].

12.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

13.The applicant has filed Form 86 dated 2 October 2024 for leave to apply for judicial review of the Board’s Decision.

14.The applicant has, insofar as the Board’s Decision is concerned, raised the following reasons to challenge the Board’s Decision:

Procedural impropriety and unfair assessment: the Board’s Decision is unfair, without taking into account of BOR 2 right; failing to consider state acquiescence and government’s failure of providing protection for its citizens; the adjudicator had excessively relied on the country of origin information (“COI”); the Board’s decision is irrational as the adjudicator had unreasonable demanded the applicant to answer questions; the Board failed to provide sufficient time for him to prepare evidence for the hearing and with the details of the applicant’s case, it was unreasonable for the Board to dismiss his appeal.

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 submitted that the Board had not considered his evidence properly and asked the Court to review the Board’s Decision.

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.Those reasons under paragraph 14 do not assist his application. They are mostly bare assertions without any evidence in support. The applicant did not ask the Board or adjourn the hearing for him to have time to prepare for the hearing.

19.The applicant has raised no valid ground 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 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.