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HCAL 561/2020
[2024] HKCFI 1098
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 561 of 2020
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Mehmood Tahir |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 23 March 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).
2. The applicant then applied to the Court to withdraw his application. By an Order dated 2 July 2021, the Court granted leave for him to withdraw.
3. By summons dated 16 May 2023, the applicant applied for restoration of his claim on the reason that he was wrong to think that he would be safe to return home. In fact, he said his life would still be in danger if he returned to Pakistan.
4. The effect of withdrawal of his claim is a termination of his claim, which still stands without being dismissed by the court. See 21/5/1 of Hong Kong Civil Procedure 2024, Vol. 1. The Court retains jurisdiction over the claim.
5. For this reason, this Court, on 23 May 2023, granted leave to the applicant to restore his claim.
6. The applicant did not ask for a hearing in his application for re-opening his application. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.
7. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
8. The applicant is a national of Pakistan. He entered Hong Kong illegally via Mainland China on 12 May 2016 and was arrested by the police on the same day. He lodged a non-refoulement claim subsequently on 16 May 2016 on the basis that he would be harmed or killed by his former employer (Mr Mustafa) due to the applicant’s relationship with Mr Mustafa’s daughter.
9. According to the applicant, he was employed by Mr Mustafa in April 2015 to be his driver. He also drove his daughter, Sobia. As they often converse in the car, they became attracted to each other as a result. However, their text messages were discovered by Mr Mustafa in or around 5 February 2016 and he became furious with the applicant. He and Sobia were both beaten due to their relationship and he was forbidden to see Sobia. Mr Mustafa further threatened to kill him if he saw them together. In fear, the applicant relocated to his friend in Lahore and stayed there for about three months. However, Mr Mustafa was able to locate him in Lahore as he had encountered Mr Mustafa a few weeks prior to his arrival to Hong Kong. In light of this, he decided to make arrangements to leave Pakistan as his parents informed him that Mr Mustafa would call them to threaten to kill the applicant. Details of his claim are set out at paragraph 7 of the Director’s Notice of Decision dated 14 June 2018 (“the Director’s Decision”) and paragraphs 6-17 of the Board’s Decision dated 23 March 2020 (the “Board’s Decision”).
The Director’s Decision
10. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).
11. By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that from all the relevant circumstances, the level of risk of harm from his employer and his men upon his return to Pakistan was assessed to be low [12]- [16]. The Director further found that state protection would be available to him if he returned to Pakistan [17]-[20], and internal relocation would be an option open to him [21]-[23].
12. He appealed the Director’s Decision to the Board.
The Board’s Decision
13. On 19 November 2019, the Board conducted an oral hearing for his appeal, during which he elected to give evidence [18] – [36].
14. In essence, the Board rejected the entirety of the applicant’s claim [45]. It was unable to accept that he was ever a driver for Mr Mustafa or his purported unacceptable relationship with Sobia. As such, the Board further rejected that he was beaten by Mr Mustafa or his assertion that he left Pakistan in fear of his safety [45]. The Board’s findings were based on several factors, such as direct contradicting testimony deposed at the hearing against the applicant’s own written evidence; whereas in the former he stated he did not return home after he was beaten by Mr Mustafa but in the latter, he had written on record that he went home after the beating incident [39] and [40]. Another similar example included his allegation that he saw Mr Mustafa whilst he was hiding in Lahore in around April 2016, however, his visa for China was issued in March 2016 [43]. Therefore, he could not have made the decision to leave Pakistan after he encountered Mr Mustafa was in Lahore; and hence, such inconsistency further undermined his credibility [43] and [44]. As for the applicable grounds of non-refoulement protection, the Board found, inter alia, there was no evidence of state acquiescence [50] nor involvement of the state [53]. Having considered the evidence, the Board concluded that the applicant failed to substantiate his claim under any of the applicable grounds [59] – [62].
15. In light of the above, the Board affirmed the Director’s Decision and dismissed the applicant’s appeal.
Application for leave to apply for judicial review of the Board’s Decision
16. The applicant has filed Form 86 dated 8 April 2020 for leave to apply for judicial review of the Board’s Decision.
17. The applicant did not raise any specific ground in support of his application as he applied for withdrawal of his claim by his affirmation filed on18 June 2021.
DISCUSSION
18. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
19. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
20. 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.”
21. The Board, for the reasons given in paragraph 14, found that the applicant’s evidence was not acceptable and his claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.
22. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
CONCLUSION
23. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 30th day of April 2024
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(M.O. WONG)(Ms)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 30/4/2024
Mehmood Tahir
Applicant’s ref. no:
Nil
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 30/4/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12162/18/6/341/P2355
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1987/18 (formerly RBCZ/12023/16)(T8S21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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