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HCAL 2635/2018
[2021] HKCFI 1090
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2635 of 2018
BETWEEN
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Hussain Shabbir |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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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. This is the applicant’s application for leave to apply for judicial review of the Decision dated 12 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 through China illegally on 18 January 2016, the same day he was arrested by police. He lodged his non-refoulement with the Immigration Department on 22 January 2016.
5. He claimed that if refouled, he would be harmed or killed by his uncle Mr. Qayyum (“Q”) and people related to the Pakistan Muslim League (N) (“PML(N)”) because of a land dispute. His deceased father had bequeathed a piece of land to his mother. Since 2014, Q came to his home and said that he wanted that piece of land. He refused to accede to his request whereupon Q threatened to kill him. One day, Q sent some people to the outside of his home where they fired shots to scare him. Nobody was injured. In 2015, whilst he was putting up banners for his supported party, the Pakistan Tehreek-e-Insaf Party. Some PML(N) members came to assault him and his friends. He was injured. He reported the matter to police, but he was detained in the police station for a day. He believed that PLM(N), being the ruling party had influence over the police. He also believed that it was Q who told the PML(N) members to attack him. Near the end of 2015, he departed Pakistan for China, where he came to Hong Kong. Details of the incidents are set out in paragraph 6 of the Director’s Decision described below.
The Director’s Decision
6. The Director considered his application in relation to the following risks:
a. risk of torture under Part VII C 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”).
7. By Notice of Decision dated 23 February 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk that he might be harmed of killed if he returned to Pakistan was low [10]; that state protection was available to him [14] and internal relocation was an option open to him [23 & 24].
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision. He attended the hearing before the Board on 12 June 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.
(1) The applicant has given inconsistent evidence in the Non-Refoulement Claim Form and before the Board. [45]
(2) The Board does not accept the applicant’s evidence that there was a land dispute between his family and his uncle; that his uncle had threatened him and his family in relation to land; that his uncle had arranged people to shoot at his house or threatened him whilst he was in Pakistan; that he left Pakistan to avoid harm from his uncle and he fears returning to Pakistan for this reason. [63]
(3) The Board does not accept that the incident of him being assault in 2015 was related to his uncle and that his uncle or PML(N) is still interested in him. [72]
(4) The Board considers that the applicant will not be at risk of any harm if he returns to Pakistan. [76]
Application for leave to apply for judicial review
10. The applicant filed Form 86 on 22 November 2018 for leave to apply for judicial review of the Board’s Decision.
11. In his affirmation in support of his application, he said that his life was still in danger in Pakistan.
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. His ground in support of this application does not assist his application.
15. 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.
16. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.
CONCLUSION
17. I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.
Dated the 28th day of April 2021
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(M. O. WONG)(Ms) |
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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 28 April 2021
Hussain Shabbir
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 28 April 2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10695/18/3/147/P2059
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3231/17 (Formerly RBCZ 10591/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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