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

HCAL 1825/2018

[2020] HKCFI 1474

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1825 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.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 31 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 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, 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 attended the hearing on 9 October 2019.

3.  Leave was granted to the applicant to amend Form 86 by deleting the Board from the column for interested party and replaced it with the Director of Immigration (“the Director”)

The applicant

4.  The applicant is a Pakistani national. He had come to Hong Kong before and was repatriated to Pakistan on 12 January 2015. On 26 January 2016, he came to Hong Kong again and surrendered to the Immigration Department. On 5 January 2017, he lodged a non-refoulement claim.

5.  He claimed that if refouled, he would be harmed or killed by Jafar Shah and his people since he had a personal dispute with Jafar, who was closely connected with a leader of the gangsters called Mundri Shah. Mundri was recruiting members for his gang. The dispute between him and Jafar took place within the college campus and they were college-mates. Jafar invited him to join the gang. He refused. The incidents below led him to leave Pakistan.

a.     In October or November 2005 Jafar and his people asked him and his friends to join the gang or they could not use the college ground or to attend classes. They refused.

b.     He complained to a friend in a nearby shop. This friend complained to Jafar’s family. One afternoon, Jafar together with 15-20 people confronted him and his friends in the campus. Jafar pushed him onto the ground. He complained to the college administration, which took no action.

c.     He complained the bully to his uncle. His uncle brought three men to the campus where they beat Jafar up. Jafar was injured seriously. He was absent for a few months from the college.

d.     In April 2006, Jafar came back to the campus. He met Jafar. Jafar pulled out a pistol and shot at him. He escaped, unhurt. He reported this incident to the police, which took no action.

e.     He moved to live in a cousin’s house in Iqbal Town in Lahore for three to four months to prepare for his examination.

f.     In July 2006, he moved to live in his grandmother’s house in Jalal Pur Jatta at the suggestion of his parents. He took his examination in March 2007.

g.     For his safety, he left Pakistan for Hong Kong in December 2007.

h.     On 24 November 2014, he heard that Jafar was not seen, he returned to Pakistan, withdrawing his application for non-refoulement in Hong Kong.

i.     In Pakistan, he saw Jafar again. Jafar pulled a gun and shot 3 or 4 shots at him. He ran away. He returned to Hong Kong and sought non-refoulement protection.

The Director’s Decision

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

a.     torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

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 17 July 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director assessed that future risk of being harmed by Jafar was low and far-fetched [20]; there would be state protection [21] and internal relocation was open to him [22].

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 28 February 2018.

9.  By 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 given [41-57], it came to reject the evidence of the applicant in relation to the threats or revenge by Jafar against him; the notorious gang under Mundri Shah; or even a person called Mundri Shah. In a nutshell, the Board rejected the facts as alleged by the applicant in support of his claim [58]. The Board also rejected that he had reported the matter to police [60] and confirmed that internal relocation was an option open to him [61-63]

Application for leave to apply for judicial review

11.  The applicant filed Form 86 dated 4 September 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of this application, he did not state that the Board had committed any error in reaching its decision.

DISCUSSION

13.  The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the Board. His lawyer had explained the Director’s Decision to him. He understood the Board’s Decision.

14.  It is obvious that the Board rejected his evidence on the facts of his claim. Therefore, he has no factual basis for his claim.

15.  I put the Board’s findings above to the applicant and asked him if he had any comments on them. He said that he had no comments.

16.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

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

CONCLUSION

18.  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