AZAM MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2925/2018

[2020] HKCFI 1202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2925 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 14 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. The Court will deal with 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 Director of Immigration (“the Director”) as proposed respondent and by deleting the Board and replacing it with the Director as interested party.

The applicant

4.  The applicant is a Pakistani national. He came to Hong Kong on 3 January 2014 illegally and was arrested by police. He lodged a non-refoulement claim on 20 April 2014.

5.  He claimed that if refouled, he would be harmed by his paternal uncle, Muhammad Najib (or Najeeb) and his family members because of a land dispute with them.

6.  The dispute arose out of a division of land inherited from his paternal grandfather. His paternal grandfather assigned a piece of land to his father and his uncle Najeeb. There was a dispute as to the demarcation of the land. An officer of the Land Department was called to make the division. However, there was a minor scuffle between his father, himself, uncle Najeeb and his cousins. One of his cousin threatened to kill him. Najeeb’s family is wealthy and they are familiar with the ruling party of Pakistan. They caused inconvenience to the applicant’s family by putting obstacles in front of their house. The applicant and his father moved to some other places in order to avoid uncle Najeeb. His friend advised him to leave Pakistan for Hong Kong. Otherwise, uncle Najeeb might harm him. He took his friend’s advice and came to Hong Kong.

The Director’s Decision

7.  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”).

8.  By Notice of Decision dated 23 March 2018, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that there was not substantial ground to believe that there would be substantial risk if he returned to Pakistan [11]; that state protection was available to him [16]; that internal relocation was an option open to him [21] and that his claim under BOR2 risk was not established.

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 9 October 2018.

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

11.  The Board considered the applicant’s evidence and found that his claims regarding the land dispute were not credible [54]; that there was not a real risk he would face any of the proscribed forms of harm should he return to Pakistan [58]. Therefore, all grounds in support of his claim failed.

Application for leave to apply for judicial review

12.  The applicant filed Form 86 on 20 December 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, he did not set out any grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14.  The Board did not accept the applicant’s factual evidence. He therefore has no factual basis in support of his claim.

15.  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.

16.  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 conclusion on the facts of the case.

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

CONCLUSION

18.  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