ALI GHAZENFAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 170/2020

[2020] HKCFI 2520

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 170 of 2020

Application for Leave to Apply for Judicial Review

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

Following:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of Pakistan who entered Hong Kong illegally on 9 May 2016 and surrendered to the Immigration Department on 13 May 2016 then he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his uncle due to their family’s land dispute.     

2.  By a Notice of Decision dated 28 September 2018 the Director of Immigration (“The Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

3.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from him, that it was a private family dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 205 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Pakistan away from his home district in large cities such as Islamabad where it would be difficult if not impossible for his uncle to locate him.

4.  On 8 October 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 19 November 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 9 January 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

5.  On 16 January 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely attached copies of the previous decisions without putting forward any proper ground for his intended challenge.

6.  However, before his application could be dealt with by the court, the Applicant on 17 September 2020 filed an affirmation requesting to withdraw his application because his uncle has offered to settle their dispute with his family.

7.  In the premises, and as the basis of his claim no longer exists, it would be appropriate that his application be dismissed rather than withdrawn. Accordingly, I accede to the Applicant’s request and dismiss his leave 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