JONSON RAHEEL v. TORTURE CLAIMS APPEAL BOARD

HCAL 1082/2020

[2020] HKCFI 2516

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1082 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 36-year-old national of Pakistan who entered Hong Kong illegally on 26 December 2007 and was arrested by police on 28 December 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his friend’s father over some religious dispute.             

2.  By a Notice of Decision dated 24 November 2014 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

3.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his friend’s father upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from him, that it is doubtful that after all these years that his friend’s father would still have any adverse interest in him, that in any event it was a private religious dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for his friend’s father to locate him.

4.  On 8 December 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s Decision, and for which he attended an oral hearing on 8 May 2015 before the Board during which he declined to give any evidence or to answer questions put to him by the Adjudicator for the Board. On 4 March 2016 his appeal was dismissed by the Board which also confirmed the Director’s Decision.

5.  By a Notice of Further Decision dated 7 July 2017 the Director again rejected the Applicant’s claim upon receiving and considering additional facts from him relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

6.  On 18 July 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, and for which he attended an oral hearing on 6 December 2019 before the Board during which he again elected not to give any evidence or to answer questions from the Adjudicator for the Board. On 28 April 2020 his appeal was dismissed by the Board which also confirmed the Further Decision of the Director.

7.  On 3 June 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s Second Decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely attached a copy of the decision without putting forward any proper ground for his intended challenge.

8.  However, before his application could be dealt with by the court, the Applicant on 21 August 2020 wrote to request to withdraw his leave application, and on 17 September 2020 he confirmed in writing that the reason for his request is that his “dispute back home has been solved” after his family members and people from the other party had sat down and talked about the issue when both sides agreed that it will be fine for him to return to his home country.

9.  As such and as the basis for the Applicant’s claim no longer exists, it would be appropriate that his leave application be dismissed rather than withdrawn. Accordingly, I accede to his request and dismiss his leave 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