FAZAL UR REHMAN v. IMMIGRATION DEPARTMENT

HCAL 684/2020

[2020] HKCFI 1814

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 684 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 national of Pakistan who entered Hong Kong illegally on 23 November 2015 and surrendered to the Immigration Department on 9 December 2015 when he subsequently raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his cousins over certain land dispute.      

2.  By a Notice of Decision dated 13 July 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 cousins upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, 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 show that reasonable internal relocation alternatives are available in Pakistan with a large population spread across a vast territory 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 some large cities where it would be difficult if not impossible for his cousins to locate him.

4.  On 26 July 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 3 January 2020 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 25 March 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

5.  On 17 April 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 or his supporting affirmation of the same date in which he simply stated that he was not satisfied with the decision but without putting forward any proper grounds for his intended challenge.

6.  However, less than three months later on 8 July 2020, he filed an affirmation for withdrawal of his leave application because “his problem is solved”.

7.  As such and as the basis of his claim no longer exists, it would be appropriate for his application to be dismissed rather than withdrawn.  According I dismiss his application for leave to apply for judicial review of the Board’s decision.  

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