Mehmood Aamir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2354/2024

[2025] HKCFI 717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2354 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 26 November 2024 of the Torture Claims Appeal Board dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant did not ask for a hearing. He appeared before the Court on 5 February 2025.

The applicant

3.The applicant, aged 34, is a national of Pakistan. He sneaked into Hong Kong on 26 April 2024 by speedboat and surrendered to the Immigration Department on 30 April 2024. The applicant lodged his non-refoulement claim on 3 July 2024. The applicant’s claim was based on his fear of being harmed or killed by a man named Alam Khan and his men because the applicant was involved in a land dispute with him.

4.According to the applicant, Alam Khan was a land owner of a piece of land adjacent to his. He want to occupy the applicant’s land. He sent people to the applicant’s land and threatened to kill him if he refused to let him have the land. The applicant was scared. He reported the matter to police, which took no action against Alam Khan. He moved to live in other places in order to avoid him. Later, he returned to his home and proposed to settle the matter with Alam Khan, who refused to do so. On 20 March 2024, he left his country for China.

5.Details of his claim are set out at paragraph 6 of the Notice of Decision dated 4 September 2024 (“Director’s Decision”).

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. In summary, the Director found that: the fear of Alam Khan and his men is unlikely to materialize and is confined at a local level [10-13]; state protection was available and no adduced information showed that the applicant would be denied by the authorities as a whole [14-17]; and internal relocation alternatives were available and reasonable [18-23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 21 November 2024, the Board conducted an oral hearing for his appeal.

9.Having considered the evidence, the Board found that the evidence was based only on the applicant’s words and no evidence was adduced to show the land relating to the dispute although registration of land titles in Pakistan was now computerized [50]; the Board formed the view that the applicant’s claim was based on speculation that Alam was a powerful and influential landlord with connections, yet he was not affiliated or belonged to any groups or organizations in Pakistan [52] Alam and his men never harmed his family and it was his father who owned the family land [59]; and the applicant’s evidence amounted to inconsistent and questionable evidence [63]. In any event, the Board found that state protection was readily available [68] and the Board was satisfied that it would not be unduly harsh for the applicant to internally relocate [30-31, 69]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

10.The applicant has filed Form 86 dated 3 December 2024 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant has raised the grounds that there was unreasonable and unfair assessment; there was a failure to consider state acquiescence; excessive reliance on country of origin information; procedural impropriety and unfair assessment; insufficient time and opportunity to present evidence.

DISCUSSION

12.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).

13.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 should have accepted his evidence.

14.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.”

15.Those grounds under paragraph 11 are not valid to challenge the Board’s Decision. He did not ask the Board to adjourn the hearing for him to have more time to prepare for his hearing. He confirmed that all necessary details of his claim are in the Board’s Decision. The other grounds are his bare assertions without any evidence in support.

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

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

DISPOSITION

18.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.