MAJID ABDUL v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2869/2018

[2020] HKCFI 1871

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2869 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 29 November 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 came to Hong Kong illegally on 6 October 2015 and was arrested by police. He lodged his non-refoulement claim on 4 November 2015.

5.  He claimed that if refouled, he would be harmed or killed by his cousin, his uncle’s son for refusing to join his political party PMLN and over a dispute of the sales proceeds of land. The facts of the case are in paragraphs 10-24 of the Board’s Decision.

The Director’s Decision

6.  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”).

7.  By Notice of Decision dated 26 October 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there were no substantial grounds for believing that there would be any substantial risk of being warmed or killed by his cousin if he returned to his country [11]; that state protection would be available to him [14] and internal relocation was an option open to him [15].

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision. He attended the hearing before the Board.

9.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision for the reasons as set out in paragraphs 49-60 of the Board’s Decision, with a summary below.

a.  Having considered the inconsistencies in his evidence, the Board came to a conclusion that he was not a truthful witness; his claim had been manufactured and he left Pakistan for unrelated reasons [54].

b.  The Board was not satisfied that there were substantial or strong grounds or a real chance or a real risk that he would be sought or harmed by his cousin or any other persons upon his return to Pakistan [60].

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 14 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he repeated his allegations that upon return to Pakistan, his cousin would harm or kill him.

DISCUSSION

12.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant.

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.  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.

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

CONCLUSION

16.  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