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HCAL 2848/2018
[2020] HKCFI 1855
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2848 of 2018
BETWEEN
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Rasool Akhtar |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 appeared before me.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Director of Immigration (“the Director”) as proposed respondent and by deleting the Board as interested party.
The applicant
4. The applicant is a Pakistani national. He came to Hong Kong on 21 September 2013 illegally and was arrested by police on 28 September 2013. On 30 September 2013, he lodged his non-refoulement claim.
5. He claimed that if refouled, he would be harmed or killed by the people of a political party call the Pakistan Muslim League (N) (“PML(N)”) because of political dispute.
6. He joined the Pakistan Peoples Party (“PPP”) before 2002. The PML(N) persuaded him to leave his party and joined it. He refused. In April 2003, he was attacked by 5 people of PML(N) with wooden sticks for about 25 minutes. He was injured and hospitalized. He reported to police. The police did not report the case. Subsequently, he was called by the PML(N) people, telling him to join them or he would not be spared. He refused. In June 2007, he was attacked again by the PML(N) people in the market for about 30 minutes. He went to hospital and received medical treatment. He reported this to police. The police also did not register his complaint.
7. The PPP won the election in 2008. He was invited to be the chief guest of honour at a local cricket club. When he arrived, he was attacked by 10 PML(N) people with cricket sticks and he was humiliated before the public. He received medical treatment and reported to police. The police did not take up this matter.
8. During the campaign for the 2013 General Election, he was also attacked by 8 men of PML(N). He was tied to a motorcycle and dragged along a rough road. He was cut on the left hand and left arm with a chopper and his back was burned with a hot iron rod. He was hospitalized for a week. The police refused to accept his complaint again. The PML(N) won this campaign. The leadership said that they would end his life. He believed this threat. He decided to come to Hong Kong.
The Director’s Decisions
9. 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”).
10. By Notice of Decision dated 29 June 2016, the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated. The Director found that the level of risk that he returned to India was low [22]; that state protection would be available to him [25] and that relocation was an option open to him [33].
11. By Notice of Further Decision dated 22 June 2017, the Director found that he was unable to establish BOR 2 risk.
The Board’s Decision
12. The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 24 July 2018.
13. By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.
14. The Board considered the applicant’s evidence and found that the applicant’s evidence was not consistent; that his allegations were unreasonable and not convincing; that his evidence was inconsistent and he gave ambivalent answers for no obvious reason and also his evidence on the fact was incorrect. See paragraphs 72-81. It concluded that it was unlikely that he was under any threat in Pakistan [90]. He was also unable to establish BOR 2 risk [93]. The option of internal relocation was available to him [88].
Application for leave to apply for judicial review
15. The applicant filed Form 86 on 12 December 2018 for leave to apply for judicial review of the Board’s Decision.
16. In his affirmation in support of his application, he only said that his life would be in danger if he returned to his country.
DISCUSSION
17. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
18. The applicant confirmed that he had had a fair interview with the immigration officer and a fair hearing before the Board. He had no comments on the Board’s findings in paragraph 14 above.
19. It is obvious that the Board did not accept his evidence on the facts in support of his case.
20. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … 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.”
21. 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.
22. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.
CONCLUSION
23. I therefore refuse to grant leave to the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.
Dated the 5th day of August 2020
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 5/8/2020
Rasool Akhtar
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 5/8/2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4100/16/7/70/P1038
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2476/15 (formerly RBCZ/ 558/14) & RBCZ/9000596/17
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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