ABBAS SAFEER v. TORTURE CLAIMS APPEAL BOARD

HCAL 705/2017

[2018] HKCFI 938

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO 705 OF 2017

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D E C I S I O N

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Introduction

1.  This is an application for leave to apply for judicial review.  According to Form 86 filed by the applicant, the decision proposed to be challenged is that of the Torture Claims Appeal Board (“the board”) (which should be the decision dated 20 September 2017) (“the board’s decision”).

2.  Earlier, by a decision dated 10 May 2017, the Director of Immigration (“the Director”) dismissed the applicant’s non-refoulement claim (“the Director’s decision”) whereas the board’s decision dismissed his appeal against the Director’s decision.

3.  The Director’s decision is not challenged in Form 86 or the supporting affirmation.

Background

4.  The board’s decision records that:

(a)  the applicant is a Pakistani national, born in May 1989, who resided in Pakistan before he came to Hong Kong;

(b)  the applicant has brothers and sisters, some of which in other localities in Pakistan;

(c)  the applicant’s religion is Muslim.  He claims he began to have trouble with another Muslim sect in early 2012 when several members of the other sect tried to stop a rally organized by the applicant’s family;

(d)  the day following the rally, the applicant came across them again and was threatened and beaten by them.  He sustained minor injuries as a result;

(e)  after discussing with his brother, the applicant moved to reside and work in another city, but he still felt pressurized by the earlier experience;

(f)  the applicant talked to his brother again later, and also to a friend who resides in Hong Kong.  He was informed of the venue for seeking asylum here;

(g)  the applicant came to Hong Kong in March 2013.  He was arrested by the police in July 2013.  He lodged his non-refoulement claim in March 2014.

The board’s decision

5.  In a careful and logically coherent decision, the board:

(1)  categorized the claim into 4 heads of claim (namely, a claim pursuant to (i) Part VIIC, Immigration Ordinance (Cap 115) (“torture claim”), (ii) Art 2, s 8, Hong Kong Bill of Rights Ordinance (Cap 383) (“right to life claim”), (iii) Art 3, s 8, Cap 383 (“cruel and inhuman treatment claim”) and (iv) Art 33, 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (“persecution claim”));

(2)  assessed the applicant’s evidence and gave reasons for the assessment (both overall and under individual heads of claim);

(3)  concluded that the appeal to the board should be dismissed.

Grounds of this application

6.  Contrary to the requirement of RHC Ord 53 r 3(2)(a)(iii) (Cap 4A), Form 86 does not state the grounds on which relief is sought by the applicant.

7.  In the affirmation filed in support of this application, the applicant deposed that:

(a)  there was no basis for rejecting his non-refoulement claim;

(b)  the board failed to consider the extended form of state acquiescence;

(c)  the board failed to consider the country of origin reports in assessing the risk of refoulement;

(d)  there was procedural irregularity in that the board was presided by someone other than the interviewing officer;

(e)  there was no basis for the board’s decision for internal relocation.

8.  Attached to the affirmation (among other copy documents such as the board’s decision) is an 11-page typed-up document.  About 8 pages thereof is a summary of earlier decisions and related statutory and convention provisions.  Of the remaining 3 pages, a number of questions have been raised.  Examples of the questions are:

(1)  (seeking information about) the extent, nature and scope of the mechanisms and procedures implemented by the Director to assess and determine right to life claims;

(2)  (seeking details of) the training given to officers appointed by the Director (and other departments) to assess and determine right to life claims;

(3)  (seeking information of) the mechanism of any appeal available to claimants whose right to life claims have been rejected.

9.  None of the said questions are proper materials which can be put forth to support an application of this kind.

10.  More importantly, none of the materials provided by the applicant to support this application can provide sufficient support of an application of this kind (for instance, para 7(a), (b) and (e) above is extremely general and vague).  There is nothing improper on the face of the Director’s decision or the board’s decision.  As stated above, the analysis therein was logical (and was adequate).  Finally, the matters summarized in para 7(c) and (d) above have no substance at all.  In particular, the board has in fact considered the country of origin reports.

Conclusion

11.  By reason of the above matters, there is nothing in this application which is worthy of further consideration (the test for determining whether leave to apply should be given is reasonable arguability: Peter Po Fun Chan v Winnie CW Cheung & another (2007) 10 HKCFAR 676, para 15).

12.  This application is accordingly refused.