MAJID RASHEED BUTT v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 257/2015

[2018] HKCFI 2519

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 257 of 2015

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

Following;

	consideration of the documents only;            or
	consideration of the documents and oral submissions ex‑parte by Counsel for the Applicant in open court;

            Leave to apply for Judicial Review granted.

Observations for the applicant (Order by The Honourable Madam Justice Toh):

Background

1.  The applicant is a national of Pakistan, aged 33 now.

2.  The applicant claimed he would be killed if he is returned to Pakistan.

3.  The applicant alleged that he was witness to a murder in 2006. After he agreed to be a witness but then somebody else threatened him that if he did give evidence then the killer’s family would kill him. So he decided not to be a witness, whereupon the victim’s family came to his home and beat him up. But he made no report to the police. The applicant told the learned adjudicator that the police were no longer looking for him as a suspect in the murder.

4.  Then he stayed with his aunt for about 8 months in Quetta, 32 hour train journey from his home then he came to HK on Feb 22^nd 2007 via China.

5.  Upon arrival he had applied to UNHCR to be a refugee, then he was arrested on 17 September 2007 and he raised a torture claim on 1 October which was later assessed under the Unified Screening Mechanism.

6.  The Director of Immigration (the director) and the TCAB/NCPO (the Board) respectively refused the applicant’s claim with respect to all four applicable grounds: i) risk of torture, ii) risk of persecution, iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR 3 risk).

7.  On 22 December 2015, the applicant applied for judicial review.

8.  On the question of delay, in that the application for judicial review was made after the required time, I have considered the reasons given by the Applicant’s solicitors in their affirmation dated 22 December 2015 and have allowed them to pursue this application although out of time.

Director’s Direction

9.  In the Director of Immigration (the Director) decision dated 23 July 2014, the Director had assessed the applicant’s claim under the Unified Screening Mechanism (USM) on all applicable grounds including torture risk under Part VIIC of the Immigration Ordinance, Cap 115, under BOR 3 risk and risk of persecution under Article 33 of the 1951 convention relating to the Status of Refugees.

10.  After consideration of all the facts as set out in the Director’s decision, the Director did not find there were any real torture risk, persecution risk or BOR 3 risk and refused the applicant’s claim.

TCAB/NCPO (the Board)

11.  In the Board’s decision dated 26 November 2014, The Adjudicator, after an oral hearing, decided that he accepted the applicant as an innocent bystander who witnessed the killing of the victim, and subsequently was threatened by both the victim’s family and the family of the alleged murderer and as a consequence of which he went to stay with his aunt for 8 months without any further difficulties.

12.  The Adjudicator found that the applicant had failed to make out his claims that if he is refouled he will suffer torture, CIDTP or persecution, and that it was open to him to relocate, so the appeal was rejected.

13.  However, the Adjudicator applied the wrong legal test for qualifications for non-refoulement protection as to who is a refugee at risk of persecution. He applied the old two limb test. (See para 12 of the Adjudicator’s decision) before the decision in HCAL 16/2016. The old two limb test involved two distinct requirements in that firstly, the applicant must qualify as a “refugee” within the meaning of Article 1A(2) under the Refugee Convention and secondly, satisfy a further hurdle under Article 33 of the Refugee Convention to qualify for non-refoulement protection. This approach was amended in the clarification letter issued by the Director to the DLS on 26 January 2017. This amendment was as a result of HCAL 16/2016 in which it was pointed out that a person defined as a “refugee” within the meaning of Article 1A(2) of the Refugee Convention was entitled to non-refoulement protection and there would be no further tests to be met based on Article 33, it was sufficient to establish persecution risk as defined in Article 1A(2) of the Refugee Convention.

14.  In this case, I therefore grant leave to the applicant to apply for judicial review from the decision of the Director refusing the applicant’s claim for non-refoulement protection under the USM and the decision of the TCAB.

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