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Asif Farooq v Torture Claims Appeal Board/non-refoulement Claims Petition Office

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date10 September 2021
Neutral Citation[2021] HKCA 1292
Year2021
Judgement NumberCAMP169/2020
Subject MatterMiscellaneous Proceedings
CourtCourt of Appeal (Hong Kong)
CAMP169/2020 ASIF FAROOQ v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 169/2020

[2021] HKCA 1292

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 169 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 5 OF 2018)

________________________

BETWEEN
Asif Farooq Applicant
and
Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office Putative Respondent
and
Director of Immigration Putative Interested Party

________________________

Before: Hon Kwan VP and Chow JA in Court

Date of Judgment: 10 September 2021

________________________

J U D G M E N T

________________________

Hon Kwan VP (handing down the Judgment of the Court):

1. On 9 June 2020, Campbell‑Moffat J refused to grant leave for the applicant to seek judicial review against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2. On 29 July 2020, the applicant filed a summons for leave to appeal out of time against that decision as the time for filing his appeal ended on 23 June 2020. The applicant’s summons was dismissed by Campbell‑Moffat J on 26 August 2020[2].

3. On 18 September 2020, the applicant filed with the Court of Appeal a renewed application for leave to appeal out of time.

4. The applicant is a national of Pakistan. He is 50 years old. He entered Hong Kong as a visitor on 4 August 2001 and subsequently overstayed. On 5 May 2009, he surrendered to the Immigration Department and lodged a torture claim. He withdrew his torture claim in 2012 stating that he wished to return to Pakistan. The applicant lodged a non‑refoulement claim on 24 July 2015 on the basis that if he returns to Pakistan he will be harmed or killed by the people of Lashkar-e-Jhangvi as he had reported their illegal activities to the police.

The Director’s decisions

5. By a Notice of Decision dated 22 August 2016, the Director rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].

6. By a Notice of Further Decision dated 3 August 2017, the Director rejected the applicant’s claim on all applicable grounds including BOR 2 risk[6] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non-refoulement claim.

The Board’s decision

7. The applicant appealed against the Director’s decisions to the Board. He attended the hearing before the Board on 10 October 2017. The Board considered that the applicant is not a truthful witness because of the vagueness, incoherence and material discrepancies in his evidence. The Board held that no credence can be given to anything the applicant asserted and concluded that the applicant failed to establish he would face any risk of harm under the applicable grounds. Therefore, the Board dismissed the appeal on 5 December 2017.

The intended judicial review

8. The applicant filed a Form 86 and an affirmation on 2 January 2018 for leave to apply for judicial review against the decisions of the Director and the Board. He put forward the following grounds for his intended challenge in his supporting affirmation:

(1) failure to consider the concept of state acquiescence and/or the extended form of state acquiescence;

(2) insufficient enquiry;

(3) failure to provide adequate reasons for the decision;

(4) failure to investigate into the country of origin information (“COI”) of Pakistan;

(5) failure to place weight on relevant information and/or placing weight on irrelevant information, or incorrect or inaccurate facts;

(6) failure to consider a consistent system of human rights violations;

(7) failure to consider if state protection exists in Pakistan;

(8) failure to call for psychological or psychiatric reports;

(9) applying the incorrect standard of proof;

(10) lack of reasonable basis for rejecting the applicant’s credibility;

(11) failure to fully consider the COI reports;

(12) procedural irregularity as the decision maker was not the interviewing officer;

(13) improper basis for consideration of internal relocation.

The judge’s decision

9. The judge...

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