KHAN ZUHAIB v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL374/2017

[2018] HKCFI 514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 374 of 2017

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 refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Pakistani male who entered Hong Kong illegally by boat on 18 March 2016 and was arrested when he landed.  He lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 2 September 2016 and 24 March 2017.  He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 7 July 2017.  He filed a notice of application for leave to apply for judicial review on 10 July 2017.  An oral hearing was arranged for 28 November 2017 because his application contained no grounds; he was given an opportunity in open court to put forward grounds.

2.  The basis of his claim was that if he were to return to Pakistan he would be harmed or even killed by his girlfriend’s family because they found out about her dating the applicant.  The Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, there is no need for me to repeat it.  Essentially the applicant met a girl in 2014 and dated her but their relationship did not become sexual or violate any Islamic law such as having sex before marriage.

3.  When her parents and brother found out in March 2015 she was dating, she told the applicant they were angry and would kill and torture him.  He was beaten up at a bus stop by some masked men not long after this conversation.  They tried to rekindle their relationship but her family found out and the applicant decided he had to leave his village September 2015 to save his life.  He eventually had to leave Pakistan in March 2016.

4.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a) risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c) risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d) risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

5.  The adjudicator treated the appeal as a rehearing and directed that a hearing be conducted.  She set out the law and key legal principles for all four applicable grounds.  She set out the objective, up-to-date and relevant country of origin information she relied on. She concluded the applicant, on his own facts, had not made out a successful case on any of the four grounds.  He was unable to show he was at risk of torture, CIDTP or persecution if refouled to Pakistan.  The adjudicator confirmed the decision of the Director.

6.  The applicant’s affirmation contained no grounds; it was only a repeat of his evidence and claim.  He reiterated that his life was in danger and appealed on humanitarian grounds to be allowed to remain in Hong Kong. Despite this, as in any application for leave to apply for judicial review, I examined and scrutinised the adjudicator’s decision to ascertain whether she made any errors of law and analysed the appeal with a high standard of fairness as required.  I considered whether the application of the enhanced Wednesbury test was satisfied.

7.  I found no failings on the part of the adjudicator.  I found no errors of law nor any evidence of procedural unfairness.  She did not fail to adhere to a high standard of fairness. There is no realistic prospect of success and I refuse leave for judicial review.

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