ATIQ AHMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2750/2018

[2021] HKCFI 1864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2750 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;   or
	consideration of documents and Applicant being absent in open court;

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 8 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant asked for a hearing.  A hearing was fixed for him and he was duly notified of it.  However, he was absent at the hearing without prior notice to the Court.  He is deemed to have forfeited his right of hearing.  I shall proceed to 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 citizen of Pakistan.  He came to Hong Kong illegally from Shenzhen on 21 April 2007.  He raised non-refoulement by way of written representation dated 2 May 2014.

5.  He claimed that if refouled, he would be harmed or killed by the robbers who had robbed him and his employer of the shop where he worked when he was in Pakistan.  After the robbery, he and his employer went to report the matter to police.  The robbers were aware of this fact and they called him to withdraw the report.  He did not withdraw the report.  The robbers attacked him two days after the robbery.  They hit him with steel rod and dagger.  He sustained injury and had to be admitted to hospital for treatment.  He had to receive operation on his leg.  He suspected that the robbers were related to police because they were able to have information about he and his employer had gone to police station to make the complaint.  The first incident took place in March 2006.  He left Pakistan on 18 April 2007.  Details of his story are set out in paragraph 8 of the Director’s Decision described below.

The Director’s Decisions

6.  The applicant had made torture claim and was rejected by the Director.  He had appealed to the Petition Team of the Security Bureau and was refused by the Petition Team on 17 May 2012.  The Director considered his application in relation to the following risks:

a.  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”);

b.  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

c.  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 22 December 2015, the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the risk of him being harmed or killed if he returned to Pakistan was assessed to be low [17]; that state protection was available to him [22]; that there was no evidence that the state was involved in the incidents [22.3] and that internal relocation was an option open to him [23].

8.  By Notice of Further Decision dated 14 December 2016, the Director rejected his BOR 2 risk claim for the reason that he was unable to establish, on evidence, that his right of life would be violated upon his return to his own country.

The Board’s Decision

9.  The applicant appealed against the Director’s Decisions.  He appeared before the Board on 20 February 2017.

10.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decisions.  The Board found that the likelihood that he would be harmed as he alleged was assessed to be small [21]; that his future risk of serious harm by the robbers was assessed to be low and would be much lower as state protection was available and internal relocation was an option opened to him [28-33].

Application for leave to apply for judicial review

11.  The applicant filed Form 86 dated 4 December 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, he submitted that the Board’s Decision was wrong.  He set out the grounds as follows:

(1)  the Board had wrongly assessed his case, such as that state protection was available to him to reduce his risk;

(2)  the Board had placed undue weight on the country of origin information (“COI”) against his case;

(3)  he was not provided with legal advice or representation;

(4)  language assistance was not provided for him;

(5)  the Board was wrong to give no credence to his evidence;’

(6)  the Director had not given explanation as to why he accepted the COI against his case more than those in his favour;

(7)  he was given the hearing bundle but no one explained the contents to him, same situation in relation to the Board’s Decision;

(8)  he reserved his right to explain the case to court.

DISCUSSION

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.  His grounds in support of this application can be dealt with below:

(1)  Grounds (1), (2), (5) are his opinions without any evidence in support of them;

(2)  Ground (3) fails because the Court of Appeal held that he is not entitled to free legal representation or advice at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.  See Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 1 78 [22]; Re Ali Haider [2018] 222 [12]; Re Miah Mohammad Sahin [2020] HKCA 982 [24];

(3)  Ground (4) and Ground (7) fail because the Court of Appeal held that high standards of fairness do not demand interpretation service being made available all the time to him.  See Re Sattar Abdul [2019] HKCA 613, 4 June 2019 [13];

(4)  Ground (6) is a complaint against the Director, which should be determined by the Board; however, the Director in his Decision had given his reasons for his decision; and

(5)  Ground (8) is unfounded because he did not attend at the hearing himself.

15.  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.”

16.  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.

17.  There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant leave for the applicant to apply for his intended 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