BILAL KHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2770/2018

[2021] HKCFI 2182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2770 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

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 28 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”), which dealt with the Director’s Further Decision on BOR 2 risk as described below. However, the Board had taken into consideration of the facts in the Director’s Decision in respect of the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk as well as requested by the applicant.

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 to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a Pakistani national.  He came to Hong Kong through the agent on 10 November 2015.  He was refused entry by the Immigration Department and he raised non-refoulement claim.  Since then, he has been detained in the Castle Peak Bay Immigration Centre.

5.  He claimed that if refouled, he would be harmed or killed by Raziq, a rich landlord, whom he owed a trading debt.  In 2012, he was unable to repay the interest for the debt.  In 2014, Raziq asked him to work in his farm without wages.  He refused.  Raziq and his people went to his home where they assaulted him with sticks.  He suffered injuries of bruises and scratches all over his body.  In December 2014, Raziq went to his home with 2 men to demand repayment of the debt.  He was unable to pay whereupon they assaulted him with kicks, punches and sticks.  Raziq was carrying a gun at that time.  He had to move to live in other places.  However, he was located by Raziq.  He had to leave Pakistan.  Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decisions

6.  The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C 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 28 January 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 risk of him being harmed or killed by Raziq if he returned to Pakistan was assessed to be low [11]; that state protection was available to him [15] and internal relocation was an option open to him [16].

8.  By Notice of Further Decision dated 20 October 2017 (“the Director’s Further Decision”), the Director refused his BOR 2 risk claim for the reason that there was no evidence to show that his right to life would be violated if he returned to Pakistan.

The Board’s Decision

9.  The applicant appealed against the Director’s Decisions.  He attended the hearing before the Board on 9 March 2018.  He elected not to give oral evidence at the hearing [33].

10.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Further Decision for the reasons that it did not believe that Raziq had the intention of killing him [39]; that his fear of being harmed or killed if he returned to Pakistan was based on unsupported assertions, speculation and the hearsay evidence [44]; that the adjudicator was not persuaded even to the low standard required that he would be subjected to any ill-treatment were he to be refouled to Pakistan [46]; that internal relocation would be an option open to him [47-50] and state protection would be available to him [51-57].  The Board also agreed with the Director that he had no evidence to establish a personal and real risk of being arbitrarily deprived of his life if refouled to Pakistan in violation of BOR 2 [59].

Application for leave to apply for judicial review

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

12.  In his affirmation in support of his application, he attached a 35-page submission containing massive materials concerning the law, the cases, the Conventions and his complaints.  Many of his complaints relate to the Director, which should be dealt with by the Board and I shall not deal with them here.  As to the complaints against the Board, I shall, in relation to his case, summarize the grounds as follows:

(1)  Error of law: failing to consider state acquiescence or the extended form of state acquiescence; failing to give weight to relevant information, but giving weight to irrelevant information instead; failing to consider consistent system of human rights violations; failing to consider the COI; applying improper basis for internal relocation; no proper basis to reject the applicant’s evidence;

(2)  Procedural unfairness: failing to provide interpretation for the hearing bundle; failing to provide legal representation at the Board’s hearing; failing to call for psychiatric reports; insufficient inquiry into the matter;

(3)  Wednesbury unreasonableness or irrationality: cherry pick COI materials not officially recognized or hearsay evidence; coming to conclusion despite shortcomings of the above.

DISCUSSION

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.  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.”

15.  The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, 26 March 2018, held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].

16.  The Court of Appeal in Re: Sattar Abdul [2019] HKCA 613, 4 June 2019 held:

“13. … it is trite that the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant: see Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].”

17.  His grounds in support of his application are sweeping and quite irrelevant to his case.  For example, there is no evidence that the state was involved in the incidents and the issue of human rights is not relevant to his case.  He did not raise the issue of psychiatric problems himself before the immigration officer or the before the Board.  There is simply no ground for him to raise this complaint.  Those authorities above have addressed his complaints.  The other complaints are his opinions and comments without any evidence or specifics in support of them.  They do not assist his application.

18.  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.

19.  There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.

CONCLUSION

20.  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