SHOUKAT ALI v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1709/2018

[2020] HKCFI 1108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1709 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 30 July 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 CACV 8/2018, [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 did not attend the hearing scheduled on 9 January 2020. I shall now 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, Form 86 was amended by deleting the Board and replaced it by Director of Immigration (“the Director”) as interested party.

The applicant

4.  The applicant is a Pakistani national. He came to Hong Kong on 15 October 2015 illegally and was arrested by police on 16 October 2015. He was referred to the Immigration Department for investigation. He lodged his non-refoulement claim on 18 October 2015.

5.  He claimed that if refouled, he would be harmed or even killed by the gang members of the ruling party, Pakistan Muslim Leagues (Nawaz) (“PML(N)”), as he was the witness of a gang rape committed by them.

6.  ISHFAQ is an influential organization connected with PML(N) at the applicant’s locality. On 15 March 2005, the applicant, his maternal cousin, Atta and his maternal uncle Ashraf witnessed members of the ISHFAQ had beaten his neighbour, Din. Din’s wife and daughter came to the scene. They released Din’s wife but raped his daughter in front of Din.

7.  As they were the witnesses, on 20 May 2005, the gang members attacked them. Atta was shot on his legs. He was injured. He reported the matter to police. Police did not take action. On 28 December 2005, Ashraf was shot and injured. He was hospitalized for a month. The matter was reported to police, who did not take action. On 29 September 2009, Ashraf, and the applicant was shot whilst they were sitting in a store. Ashraf was shot in the stomach. He was shot in his head, right arm and back. He was hospitalized. The shootings were reported to police, but no action was taken.

8.  On 25 July 2010, the leader and his brother of ISHFAQ were killed. The gang accused the applicant, Atta and Ashraf of being the murders and they filed a charge against them with the police. All of them were detained by police for investigation for 3 months. They were found innocent and released.

9.  On 25 June 2012, while they were on a vehicle and motorbike, the ISHFAQ people shot them with AK47’s. Atta was killed. Ashraf and the applicant were injured and hospitalized.

10.  On 2 July 2013, the sister of the deceased leader of ISHFAQ was killed. Her younger sibling filed another lawsuit alleging the applicant was the murderer.

11.  Fearing that he might be harmed or killed by the ISHFAQ people or arrested by police, the applicant fled to Karachi City and then to China.

The Director’s Decision

12.  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”).

13.  By Notice of Decision dated 31 August 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk of being harmed or killed by the ISHFAQ if he returned to Pakistan was low [22]; that state protection was available to him [28] and internal relocation was an option open to him [31]. His claim under BOR2 risk was not established.

The Board’s Decision

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

15.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

16.  The Board considered the applicant’s evidence and found that taking the cumulative significance of the evidence, it did not accept all the facts in support of the applicant’s claim; that he and his relatives had witnessed the rape case; that there was a report to police; that they were targeted for harm for the reasons he had claimed; that he had been attacked; that there had been false charge of murder against him and that he was subjected to any real chance of any harm for any of the reasons he had claimed [45]. See §§14-45 of the Board’s Decision.

Application for leave to apply for judicial review

17.  The applicant filed Form 86 on 22 August 2018 for leave to apply for judicial review of the Board’s Decision.

18.  In his affirmation in support of his application, he relied upon the grounds below.

1.     He was not given any free legal assistance.

2.     He had language problem as he cannot write English or Cantonese.

3.     He was not given a chance to make submission on BOR 2 risk.

DISCUSSION

19.  The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 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. Gound (1) fails.

20.  The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review. Ground (2) fails.

21.  Ground (3) is simply not correct as BOR 2 risk was considered together with the other risks.

22.  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.

23.  As the Board did not accept the applicant’s evidence in relation to the facts in support of his claim, the applicant has no factual basis for his claim.

24.  There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

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

CONCLUSION

26.  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