IMTIAZ FAISAL v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2864/2018

[2020] HKCFI 1873

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2864 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 8 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 by replacing the Immigration Department with the Board as proposed respondent and by replacing the Immigration Department with the Director of Immigration (the “Director”) as interested party.

The applicant

4.  The applicant is a Pakistani national.  He came to Hong Kong illegally on 22 August 2009 and was arrested by police.  He lodged his non-refoulement claim on 25 August 2009.

5.  He claimed that if refouled, he would be harmed or killed by an unknown group of people who had previously kidnapped him and also by some members of Inter-Service Intelligence Agency, Pakistan because the sensitive information about the assignation of the President of Pakistan he had received.  The facts of the case are set out in paragraphs 25-37 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 21 December 2016 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the level of harm by his enemies if he returned to his country was low [68]; that state protection would be available to him [89] and internal relocation was an option open to him [125].

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 below.

(1)  The Board found no plausible evidence to support his story of being privy to the assassination plot targeting the late Benazir Bhutto or that he suffered any of the consequences.  In a nutshell, the Board rejected his story in support of his claim [118].

(2)  The applicant had not suffered the past harm he had claimed to face in Pakistan and the Board did not accept that he faced any prospective risk of harm from any parties in the event he returned to Pakistan [119]

(3)  The Board did not accept that there is a consistent pattern of gross, flagrant or mass violations of human rights in Pakistan for the purposes of section 37ZI(5) of the Ordinance.

(4)  There is not a real risk that the applicant will prospectively face any of the proscribed forms of harm should be return to Pakistan [121].

     See paragraphs 96-118 of the Board’s Decision.

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 13 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he stated that the Board had disregarded 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 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