MAHMMAD GHAFOOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 772/2020

[2024] HKCFI 3499

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 772 of 2020

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;

1.  Leave to the applicant to withdraw the Leave Application.; and

2.  The Leave Application be dismissed.  

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 27 April 2020, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 5 March 2020 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 13 March 2018 (“Director’s Decision”) who refused the applicant’s claim for non-refoulement protection.

Background

2.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

3.  The applicant came from Pakistan. He arrived in Hong Kong on 7 December 2015 illegally. On 13 January 2016, he lodged a non-refoulement claim, covering all applicable grounds of torture risks[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on his fear of being harmed or killed by his uncle over a dispute for a piece of land, half of which had been transferred to the applicant, if he were refouled to Pakistan. It was asserted that the uncle was rich and well-connected with the ruling party of Pakistan.

4.  The Director decided against the applicant’s claim on all applicable grounds. The Director found that the matter was solely a personal and private dispute, which was only localized in his home village. Based on the low intensity of ill-treatment from the uncle (and his sons), the Director considered that applicant’s claim of future risk was small. The Director further took into consideration the objective “Country of Origin Information” reports (“COI”) and found that state protection and the option of internal relocation were reasonably viable. Hence, the appeal to the Board.

5.  On 19 December 2019, the applicant attended a hearing before the Board. The Board reviewed all the materials placed before it afresh, and agreed with the Director’s findings. The Board concluded that the applicant failed to make out his claim.

Legal principles applicable to judicial review

6.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

7.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he exhibited a copy of the Board’s Decision and advanced 6 grounds (numbered 4 to 9) in support of the Leave Application. Grounds numbered 4, 5, 6, and 8 alleged “procedural impropriety”; numbered 7 alleged “error/misdirection in law”. The last numbered ground alleged the lack of sufficient basis “for the Board” to conclude that he and his family members would not be at risk of being subjected to torture if re-fouled. These grounds were quite convolutedly drafted, and difficult to follow. Despite having alluded to various grounds of “procedural impropriety” (as well as “irrationality” for ground numbered 6”), the applicant was not able to specify any errors in the Director’s Decision and the Board’s Decision. He simply vaguely asserted that there were failures (on the Director and the Board) in conducting his claim: (i) with “sufficient due diligence”; (ii) with sufficient inquiry into the COI; (iii) with sufficient assessment of BOR 2 risk; (iv) with proper consideration of his fear; and (v) with due consideration of the psychological strain and threat to him. Notwithstanding the number of grounds that the applicant has provided, he has not provided any evidence or specified any errors.

8.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that both the Director and the Board have come to the correct conclusion that the applicant had failed to discharge his burden of proving the asserted fears and risks.

9.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.

Withdrawal of Leave Application

10.  On 5 November 2020, the court received a letter from the applicant to apply to withdraw the Leave Application, stating that he would “not face any risk upon refoulement to [his] country, and [he] will be safe in [his country].”

11.  Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.

Orders

12.  Leave to the applicant to withdraw the Leave Application.

13.  The Leave Application be dismissed.

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