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

HCAL 1423/2018

[2021] HKCFI 883

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1423of 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 3 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall 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 Pakistani national. He went to China as a visitor on 15 July 2015. He came to Hong Kong illegally by boat on 22 July 2015 and was arrested by police on the same day. He lodged his non-refoulement claim to the Immigration Department on 24 July 2015 by way of a written submission.

5.  He claimed that if refouled, he would be harmed or killed by the brother of his ex-wife because he had not transferred his property to his former wife when he divorced her. The dispute between them arose out of his request of getting marry with another woman because his wife did not bear any child. His wife’s brothers threatened that he had to transfer his property to their family if he married another woman. They had falsely complained to the police that he consumed alcohol in public and sold drugs on the streets for three times. He was detained by police. His friend bailed him out by bribing the police officers. He had complained to the police. They asked for bribe. He finally divorced his wife in 2013 without transferring his property to her. His friend advised him to leave Pakistan. He accepted the advice and left Pakistan. Details of the incidents are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

6.  The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C 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”).

7.  By Notice of Decision dated 25 January 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no ground for believing that he would be subjected to any real risk of being harmed or killed if her returned to Pakistan [10]; that state protection was available to him [14] and internal relocation was an option open to him [16].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision. He attended the hearing before the Board on 24 May 2018.

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.

(1)  The Board accepted that the applicant had been subjected to threats, false accusations of selling drugs on the street and detention by police in Pakistan. But the evidence did not show that he would be subjected to any real risk of harm of being killed if he returned to Pakistan. This was because he was not harmed by his ex-wife’s brothers after the divorce over a period of two years. [50-53]

(2)  The Board also found that internal relocation was an option open to him if he returned to Pakistan. [55]

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 19 July 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmations in support of his application, he said that he wanted to review the Board’s Decision because the Board did not consider his dangerous situation.

DISCUSSION

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

13.  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.”

14.  His ground in support of this application does not assist his application.

15.  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.

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

CONCLUSION

17.  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