USMAN SAQIB v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1000/2020

[2024] HKCFI 3617

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1000 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 the Applicant in open court;

1.  The Form 86 is amended on the court’s own motion;

2.  Leave to the applicant to withdraw the Leave Application; and

3.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 25 May 2020, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 30 July 2018 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision dated 3 March 2017 (“Director’s Decision”) of the Director of Immigration (“Director”), who refused the applicant’s claim for non-refoulement protection.

2.  In the Form 86, the applicant named the Board and the Director as the proposed respondent(s) as well as the interested parties. As only the Board should have been the proper proposed respondent and the Director the proper proposed interested party, the Form 86 will be amended accordingly on the court’s own motion.

Background

3.  The background as taken from the Director’s “Notice of Decision” dated 16 October 2015, the Director’s Decision and Board’s Decision can be briefly stated as follows.

4.  The applicant came from Pakistan. He arrived in Hong Kong illegally via Mainland China on 12 December 2007, and was arrested by police. After he had been transferred to the custody of the Immigration Department, on 29 December 2007 the applicant lodged a non-refoulement claim. By a “Notice to Person Making a Non-refoulment Claim” served on the applicant on 11 February 2014, the Director informed the applicant that the applicant’s claim would be assessed on all applicable grounds – risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on his fear of being harmed or killed by a distant relative of the applicant’s father concerning a family land dispute if he were re-fouled.

5.  By a Notice of Decision dated 16 October 2015, the Director decided against the applicant’s claim on all applicable grounds. The Director found that the said distant relative of his people would not likely inflict direct threat or harm against the applicant. It was accepted that the applicant would not be subjected to any real risk or continuous risk of harm from the said relative. The Director further took into consideration of the objective “Country of Origin Information” reports and found that state protection and the option of internal relocation were reasonably viable. Hence, the applicant’s appeal to the Board.

6.  On 7 February 2017, the Director invited the applicant to make further submissions and provide additional facts relevant to his non-refoulment claim, including the claim under BOR 2 risk before 21 February 2017.

7.  Before the expiry of the deadline date for further submissions, the applicant, on 20 February 2017, attended a hearing before the Board. Shortly after the said hearing, the Director’s Decision was delivered. As the applicant provided nothing to the Director, the Director concluded that the applicant failed to establish the BOR 2 risk and rejected the applicant’s non-refoulement claim.

8.  In view of the Director’s Decision, the Board held a second hearing on 23 June 2017 in which the applicant attended. After having considered the applicant’s evidence, the Board found that the applicant had produced no evidence that could substantiate his asserted risks. It was concluded that the state protection and re-location were reasonably available to the applicant. The Board concluded that the applicant failed to make out his claim, and confirmed the Director’s decision dated 16 October 2015 and the Director’s Decision.

Legal principles applicable to judicial review

9.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

10.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he did not provide any grounds in support of his intended challenge.

11.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that both the Director and the Board have come to the correct conclusion that the applicant had failed to discharge his burden of proving the asserted fears and risks.

12.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.

Request to withdraw the Leave Application

13.  On 20 November 2024, the court recently received a hand-written letter from the applicant, seeking to withdraw the Leave Application. In the applicant’s letter, the applicant stated that his problem was solved in Pakistan and that it was safe for him to go back.

14.  Apart from the applicant’s said letter of request to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.

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