Aziz Shafqat v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2571/2019

[2025] HKCFI 736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2571 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 22 August 2019 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 asked for a hearing. He appeared before the Court on 10 February 2025.

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 6, is a national of Pakistan. He arrived in Hong Kong illegally on 16 September 2013 by boat. On 17 September 2013, he was arrested by police and the applicant subsequently lodged his non-refoulement claim on the basis that, if refouled, he will be harmed or killed by a man named Molvi Sajid (“Sajid”) and his people from the Sunnis extremists group named Sipah-e-Sahaba Pakistan (“SSP”) because he belonged to the Shia sect and was a secretary of the Shia Muslim organization named Jamia Jawadia.

5.According to the applicant, he was a famous figure as he was the secretary of the Shia Muslim organization and he was responsible for arranging for the annual ceremonies for the Shia Muslim held each year. In 2007, he was attending the Imam Bargah, the name of the Shia Muslim mosque where there was a bomb. The crowd was dispersed. Police was called to defuse the bomb. Then he received threats from Sajid. He attempted to live different places of his friends and relatives in order to avoid him. On 10 February 2013, he was assaulted by Sajid and around 10 of his people with gun butt, batons, fists and kicks. He was injured with fracture on his right small finger deep cuts on his back, and bruises and swellings all over his body. He was admitted to hospital for a week and it took him one month to fully recover. Police had come to the hospital for information, but no further action was taken. He went to China and on 16 September 2013, he sneaked into Hong Kong from Shenzhen by boat.

6.Details of his claim are set out at paragraph 6 of the Notice of Decision dated 26 August 2016 (“Director’s Decision”).

The Director’s Decision

7.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”).

8.The Director assessed the applicant’s claim on all applicable grounds except BOR 2 risk and dismissed his claim. In summary, the Director found that: it was highly inconceivable why Sajid and his SSP people had left you alone for nearly 4 years prior to the 1^st incident and only started to threaten you in mid-2011 [12]; that the low intensity and frequency of past ill-treatment from Sajid and his SSP people in the past is indicative of a small future risk of harm [13]; the influence and power of Sajid and his SSP people involved in the dispute was very limited or that other SSP members of other areas were actually not involved [14]; reasonable state protection was available [15]; and internal relocation alternatives were available and reasonable [16].

9.By way of the Notice of Further Decision dated 28 July 2017 (“Director’s Further Decision”), the Director assessed the applicant’s claim on BOR 2 risk and dismissed his claim. In summary, the Director found that there was no reply form the applicant to provide additional materials or facts particular on BOR 2 risk [3]; and having carefully reviewed the claim, in the absence of additional information, it was considered that the applicant has failed to establish BOR 2 risk [6].

The Board’s Decision

10.The applicant appealed the Director’s Decision and the Director’s Further Decision to the Board. On 2 May 2019, the Board conducted an oral hearing for his appeal.

11.Having considered the evidence, the Board found that there was no reliable evidence that the applicant had been a secretary of the Jamia Jawadia and on multiple occasions, the Board did not believe that the applicant was telling the truth or that the copy of a report in relation to the applicant’s assault was genuine [63-69, 72]. Further, the applicant had not satisfied the Board that he came to Hong Kong to seek asylum or non-refoulement protection [74]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds and that the applicant was in no different position from any other Shia citizen of Pakistan [77]. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

12.The applicant has filed Form 86 dated 4 September 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board’s Decision.

DISCUSSION

14.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).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant complained that the Board did not mention his son’s situation that he is suffering from cancer and is being treated in the United States.

16.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.”

17.The fact that the Board did not mention his son’s situation in the Board’s Decision is because his son’s situation is irrelevant to his application and the Board should not take into consideration evidence not relevant to his application. This is not a valid reason against the Board’s Decision. There is no valid ground from the applicant to challenge the Board’s Decision.

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

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

DISPOSITION

20.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.