SHAKHIL HUSSAIN v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1843/2018

[2020] HKCFI 1540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1843 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 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant did not attend the hearing scheduled on 21 January 2020.

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 Immigration Department and replacing it with the Board as the proposed respondent.

The applicant

4.  The applicant is a Pakistani national. He came to Hong Kong on 28 January 2016 illegally. He surrendered himself to the Immigration Department on 2 February 2016. He lodged his non-refoulement claim by written representation on 8 December 2017.

5.  He claimed that if refouled, he would be harmed or even killed by the Pakistani police because his twin brother committed robbery and had killed a person and he had disappeared. The police wanted to charge him in order to close the case. They had arrested him and locked him up in a cell for a month. He was tortured every day by being hung up upside down, beating, cutting with razor and then tempering the wounds with chili water and salt. He pretended to offer the whereabouts of his brother and took the opportunity of escaping when he was released to find his brother. He then came to Hong Kong.

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 10 January 2018, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that there was no reasonable likelihood that the risk of harm as alleged was real and foreseeable [10]; that state protection was available to him [17] and internal relocation was an option open to him [18]. His claim under BOR2 risk was not established.

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 4 July 2018.

9.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

10.  The Board considered the applicant’s evidence and found that because of the multiple problems with the credibility of his account, it considered that he had fabricated the claims on the basis of which he sought non-refoulement protection. It rejected the evidence in support of his claim [51]. See §§38-51 of the Board’s Decision.

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 5 September 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

13.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

14.  There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

15.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

16.  I therefore refuse to grant leave to the applicant to apply for 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