SHAHZAD KHURRAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2632/2018

[2021] HKCFI 1139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2632 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;  or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 24 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a citizen of Pakistan. He came to Hong Kong illegally through China on 28 February 2016. The next day, he was arrested by police. He lodged his non-refoulement claim with the Immigration Department on 22 February 2016.

5.  He claimed that if refouled, he would be harmed or killed by some members of Pakistani Muslim League –N due to arguments between him and them regarding matters of general election and that he was from Shia Sect. They are his enemies. He joined the Pakistan Tehreek Insaf. He had arguments with his enemies on general election of Pakistan whereupon they assaulted him with iron and hockey sticks. He fell unconscious. He was taken to hospital for treatment. It took two and a half months for recovery. His enemies threatened him that they would kill him. He had gone to Saudi Arabia and Lahore to avoid them. However, in Lahore, he met them. They assaulted him with knives and choppers. Some of them had guns. But they did not shoot at him. His back was slashed with knife and his left arm was fractured. He left Pakistan for safety.

The Director’s Decision

6.  The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 Notice of Decision dated 8 February 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of being harmed or killed if he returned to Pakistan was assessed to be low [12]; that state protection was available to him [15] and internal relocation was an option open to him [21].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision. He attended the hearing before the Board on 20 March 2018.

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that he had given inconsistent evidence not plausible to believe; that it came to the conclusion that his assertions of being assaulted and injured by his enemies because of arguments on general election of Pakistan or because of his religion were not true; that he had no such experiences as he said and that there is no real or substantial risk of harm of being killed if he returns to Pakistan. See paragraphs 38-58 of the Board’s Decision.

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 22 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he said that he could not go back to his own country at the moment because his life was not safe.

DISCUSSION

12.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

14.  His ground in support of this application does not assist his application.

15.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1