REHMAN AZIZ UR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2722/2018

[2021] HKCFI 1056

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2722 OF 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court.

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 8 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a Pakistani national. He came to Hong Kong illegally on 22 December 2009 and was arrested by police on the same day.  He had previously made a torture claim to the Immigration Department under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment on 24 December 2009 and was rejected on 17 May 2012.  He lodged his non-refoulement claim with the Immigration Department on 10 March 2014.

5.  He claimed that if refouled, he would be harmed or killed by Javed and his associates due to a land dispute.  He claimed that he is the owner of a piece of land, which he bought himself.  One day, a person called Javed brought some people to the land and told him that he wanted the land.  They occupied the land.  He got his uncle to talk to him. His uncle was shot dead in the chest.  He was afraid and left Pakistan for China, from where he came to Hong Kong.  Details of the incidents are set out in paragraph 9 of the Director’s Decision described below.

The Director’s Decision

6.  As his Torture claim had been dealt with previously, the Director considered his application in relation to the following risks:

a.     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”);

b.     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

c.     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 12 January 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that there was no ground for believing that he would be subjected to any real risk of being harmed or killed by Javed or his associates if he returned to Pakistan [14]; that state protection was available to him [23] and internal relocation was an option open to him [24].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 20 September 2018.

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.  See paragraphs 29-40.

(1)  The Board found his evidence vague and unpersuasive, especially when he was asked about the details of the occupation of his land by Javed.  It came to the conclusion that his was a fabricated story.

(2)  Based upon the above finding, the Board concluded that it was not satisfied that there were substantial or strong grounds or a real chance or a real risk that the applicant would suffer harm amounting to any of the risks he claimed.

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 30 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmations in support of his application, he set out a rather lengthy and repetitive litany of grounds, many of which may not be relevant to his case. I shall summary his grounds as follows:

(1)   no reasonable basis or adequate reasons to reject his credibility;

(2)   failure to consider extended state acquiescence;

(3)   failure to consider the COI;

(4)   irregularity: the adjudicator is not the same immigration officer; failing to investigate the COI; selective weights to COI; adjudicator referring to COI without prior referring it to the applicant; failing to consider consistent system of human right violation; failing to consider state protection; consider irrelevant issues; no legal representation or hearing for the BOR 2 risk assessment;

(5)   procedural impropriety: no sufficient chance for the applicant to call evidence; failing to call psychological and/or psychiatric report; applying incorrect standard of proof and no proper basis for internal relocation assessment;

DISCUSSION

12.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

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

“13.… …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.”

14.  The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, 26 March 2018, held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].

15.  His grounds in support of his application above are sweeping. Most of them are not applicable to his case.  The Board has considered his evidence at the hearing before it.  See paragraphs 29-40 in the Board’s Decision.  I consider that it is unnecessary to address each of his grounds.  I have dealt with the relevant grounds by reference to the authorities above. There is no evidence or specifics in support of the other grounds.  There is no problem with the consideration of the Country of Origin Information by the Board or the application of the law to his case.  The grounds above should be rejected.

16.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant leave for the applicant to apply for his 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