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HCAL 347/2017
[2018] HKCFI 88
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.347 of 2017
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AHMED SHERAZ |
Applicant |
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DIRECTOR OF IMMIGRATION |
1st Putative Respondent |
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TORTURE CLAIMS APPEAL BOARD |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by the Honourable Madam Justice Toh:
Leave to apply for Judicial Review refused.
Observations for the applicant:
1. The Director of Immigration (“the Director”) dismissed the applicant’s non‑refoulement claim. The Torture Claims Appeal Board (“TCAB”) dismissed the applicant’s appeal against the Director’s determination. This is an application for leave to apply for judicial review against the TCAB’s decision.
Background
2. The applicant is a Pakistan national. He was a supporter of an independent political party for Azad and actively participated in the party activities. His party’s candidate lost the election in 2010 to an opposition candidate from the Pakistan People Party (“PPP”). The applicant claimed that on one occasion, his motorbike was bumped by the son of a very influential supporter of PPP and although his leg was injured, he managed to run away, he did not report the matter to the police as he thought the police had close connection with PPP. He moved away and lived into other location in Pakistan for about two years, eventually he went to China and arrived in Hong Kong on 18 December 2013. Shortly after his arrest, he then filed an non‑refoulement claim on 21 December 2013. He had been told from his family members that the people of PPP were still looking for him. The applicant therefore feared of being killed or subjected to ill‑treatment or punishment if he is returned to Pakistan.
3. The applicant came under the following grounds:
(i) risk of torture under Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) and Part VIIC of the Immigration Ordinance, Cap 115 (“Torture risk”);
(ii) BOR 3 risk; and
(iii) Persecution risk
4. In the hearing before the TCAB, the applicant did not know that the ruling party in Pakistan which was in the hands of the PPP had been replaced by the Pakistan Moslim League (“PML”) and the applicant did not know how this change of political party would affect his claim.
5. The Adjudicator considered the Country of Origin Information (“COI”) available before him and also the law pertaining to the various claims lodged by the applicant and at the end of the day, the Adjudicator accepted that the applicant’s evidence was generally true and reliable though there was no corroborative evidence to support. The Adjudicator found that no substantial grounds exist of believing that the applicant would be in danger of being subjected to torture upon his return nor had the applicant established any real risk of that.
6. As for the BOR 3 risk, the Adjudicator having read the COI before him found that there was no consistent pattern of gross, flagrant or massive violations of human rights in Pakistan. PPP is no longer the dominating party and it is open to the applicant to internally relocate in Pakistan if he fears the PPP.
7. As for the persecution risk, the Adjudicator found that the applicant has been unable to establish a well‑founded fear of persecution.
8. Finally, as to the BOR 2 risk, the Adjudicator found that the applicant had also failed to establish any risk of life. So taking into account all the above matters, the Adjudicator dismissed the appeal from the Director and confirmed it.
9. I find that the applicant had failed to demonstrate any reasonably arguable grounds to meet the test in Peter Po Fun Chan v Winnie C W Cheung and another (2007) 10 HKCFAR 676, paragraph 14‑17. Therefore, the application for leave to apply for judicial review is refused.
Dated the 19th day of January 2018.
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(Anthony Cheng) |
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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 his 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);
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Sent/Handed to the Applicant/ the Applicant’s solicitors on 19/01/2018
[Ahmed Sheraz] |
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Sent/Handed to the Putative Respondent/
the Putative Respondent’s solicitors / such interested parties as may be directed by the Court / the Putative interested parties’ solicitors on 19/01/2018
Director of Immigration (1st Putative Respondent)
(Ref. No: QA T/C 2667/15) (Formerly RBCZ 1136/14)
Torture Claims Appeal Board
(2nd Putative Respondent)
(Ref. No.: USM 3815/16/6/5/P991)
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b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and |
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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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Form CALL-1
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