SHAH SYED TALAT ABBAS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1572/2018

[2020] HKCFI 1104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1572 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  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 CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), 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. The applicant did not attend the hearing on 16 August 2019. The Court will therefore deal with the application on the papers.

2.  Pursuant to the powers under O.53, r.3(6), O.20, r.8 of the Rules of the High Court, Form 86 is amended by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

3.  The applicant is a Pakistani national. He came to Hong Kong illegally by boat from China on 27 July 2013. On 25 September 2013, he surrendered to the Immigration Department. He lodged his non-refoulement claim on 23 April 2014.

4.  In support of his claim, he said that if refouled, he would be harmed or killed by Zahid and Arif, who were the buyers of a portrait sold by the applicant in Pakistan. Zahid and Arif had close affiliation with the Muttahida Qaumi Movement, which is influential in Pakistan.

5.  The applicant ran a business of selling portraits and paintings with his partner called Waseem, who introduced Zahid and Arif to him. In a transaction of selling a portrait to Zahid and Arif, the applicant delivered the portrait to the representative as designated by them. However, they denied that they had received the portrait. They demanded 20 or 30 million rupees from the applicant. They threatened that if the applicant was unable to pay, they would kill him. The applicant discussed the matter with Waseem. They decided to leave Pakistan in order to avoid Zahid and Arif.

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 20 October 2017 (“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 as claimed by the applicant if he returned to Pakistan was low [10]; that state protection would be available to him [12] and that internal relocation was an option open to him [16]. Also, he was unable to establish BOR 2 risk.

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 24 May 2018.

9.  By Decision dated 5 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

10.  The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision [33-41], came to the conclusion that it did not accept that there was a partnership business between him and Waseem or there was any transaction of sale of a portrait to Zahid and Arif. In a nutshell, the Board rejected his evidence in support of his claim for non-refoulement [42].

Application for leave to apply for judicial review

11.  He filed Form 86 on 8 August 2018 for leave to apply for judicial review of the Director’s Decision and the Board’s Decision.

12.  In his affirmation, he simply said that the Board had disregard his dangerous situation.

DISCUSSION

13.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review by the Court. However, 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.

14.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

15.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the 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