AKBAR JAVED v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1844/2018

[2020] HKCFI 1542

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1844 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 17 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 failed to attend the court without any prior notice or explanation. I shall proceed to consider his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended Form 86 by deleting the Director of Immigration (“the Director”) as respondent and deleting the Board and replaced it by the Director as interested party.

The applicant

4.  The applicant is a Pakistani national. He came to Hong Kong on 24 October 2009 illegally and was arrested by police the next day.  He lodged a non-refoulement claim on 28 October 2009.

5.  He claimed that if refouled, he would be ill-treated by his enemies, Naseer and Wasim, who are supporters of Pakistan Muslim League (Q) (“PML(Q)”)

6.  The events leading to his leaving Pakistan are summarized below.

a.He belonged to the Pakistan People’s Party (“PPP”), a rival party to PML(Q), to which his enemies belonged. He and his enemies had a family feud. Because of the feud, he and his enemies always fought each other. In 2007, there was an election of the local village chairman. Because of the dispute in the election for the local chief, PPP and PML(Q) people had a fight. He was injured as he was at the front. The matter was not pursued by the police.

b.In 2007, because of a love relationship between his cousin and Wasim’s daughter, which Wasim disapproved, there was a fight between him and Wasim. Wasim was injured, but he did not report it to police. He called to threaten that he would take revenge and kill the applicant.

c.In June 2009. Whilst he was walking on the street, he was assaulted by Wasim together with around 9 people holding iron rod or wooden sticks. He was injured quite seriously and had to receive treatment in hospital. He attempted to report the matter to police. But the police officer did not take up the matter. He suspected the officer was related to Wasim.

d.His elder brother and two cousins went to find Naseer. They met and had a fight and there were gunshots. Police intervened. People of both sides were taken to the police station. However, because of their relationship with police officers, all were discharged. However, the chief of the village, who was related to Wasim, called to threaten his family that he would kill them and particularly the applicant. He family advised him to leave Pakistan. In Hong Kong, he had contact with his family and was told that his enemies were still looking for him.

The Director’s Decisions

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

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

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”).

8.  By Notice of Decision dated 2 February 2015 (“the Director’s Decision”) and another Notice of Further Decision dated 10 February 2017 (“the Director’s Further Decision”), collectively called the Director’s Decisions, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk against him from Naseer and Wasim as he claimed if he returned to Pakistan was low [62]; that state protection was available to him [80] and internal relocation was an option open to him [86]. His claim under BOR2 risk was not established.

The Board’s Decisions

9.  The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 19 October 2015.

10.  By the Board’s Decision dated 6 January 2017 (“the Board’s 2017 Decision”), the Board rejected his appeal and confirmed the Director’s Decision. Although the applicant has not made an application for leave to apply for judicial review of the Board’s 2017 Decision, I consider that the Court should take into account the facts and reasons in this Decision because those facts and reasons in this Decision are the foundation for the assessment of the Board’s Decision. I shall now consider the Board’s 2017 Decision.

11.  The applicant elected not to give evidence at the hearing.

12.  The Board considered the applicant’s evidence and found that the facts of his case did not fall within any of the statutory or Convention provisions. As such, he failed to establish a substantial risk of Torture, BOR 3 or Persecution [33] See §§ 30-33 of the Board’s 2017 Decision.

13.  The Board considered the applicant’s appeal on BOR 2 risk without a hearing. By the Board’s Decision, it found that the applicant failed to establish BOR 2 risk.

Application for leave to apply for judicial review

14.  The applicant filed Form 86 dated 5 September 2018 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

16.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

17.  The applicant has not challenged the Board’s 2017 Decision. Nor can this Court find any valid ground to interfere with the Board’s findings.

18.  Also, there is no valid ground for this Court to interfere with the Board’s Decision.

19.  The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.

CONCLUSION

20.  I therefore refuse to grant leave to the applicant to apply for 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