BUTT ABU BAKAR v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1871/2018

[2020] HKCFI 1286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1871 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 30 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV 8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant did not attend the hearing scheduled on 16 January 2020. I shall proceed to consider his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Director of Immigration (“the Director”) and replacing him with the Board as proposed respondent and adding the Director as interested party.

The applicant

4.  The applicant is a Pakistani national. He came to Hong Kong illegally on 20 September 2014. He surrendered himself to the Immigration Department on 24 September 2014 and lodged his non‑refoulement claim on 2 December 2014.

5.  He claimed that if refouled, he would be harmed or even killed by his enemies who were connected to the Pakistan Muslim League (Nawaz) due to a business dispute.

The Director’s Decision

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

a.  risk of torture under Part VIIC 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 19 April 2018, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk as alleged was low [13]; that state protection was available to him [26] and internal relocation was an option open to him [31]. His claim under BOR 2 risk was not established.

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 14 August 2018.

9.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 7 September 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 the Board’s Decision was unreasonable. He did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

12.  By a letter dated 4 October 2019, he applied to this Court for withdrawal of his appeal against the Decision of the Director and the Board.

13.  In order to ensure that the applicant would not apply to restore his application, I directed that he should confirm in writing that he agreed that his application might be dismissed by the court for the reason that he wished to withdraw his application.

14.  The applicant did not reply. Nor did he appear on the date of hearing on 16 January 2020. This demonstrates clearly that he has no intention of proceeding with his application for leave to apply for judicial review of the Board’s Decision.

15.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16.  There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

17.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application. It is therefore unnecessary for me to deal with his application for withdrawal of 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