Ali Saqib v. Torture Claims Appeal Board and Another

HCAL 244/2017

[2018] HKCFI 1250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 244 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by (counsel for) the Applicant being absent / in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 31-year-old national of Pakistan who entered Hong Kong on 10 March 2014 and was arrested by the police on the same day.  After he was referred to the Immigration Department for investigation, on 12 March 2014 he raised his non-refoulement claim with the Department on the basis that if he returned to Pakistan he would be harmed or killed by certain gangsters for refusing to pay them protection money.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Ahmad Nagar Sharqi, Wah Cantt, District Rawalpindi, Punjab, Pakistan.  After leaving school he first worked as a construction worker, and in 2013 he opened a shop in his home district with a partner selling mobile phones.  However, shortly thereafter a group of gangsters started to come to their shop demanding for protection money and threatening to shoot them with their pistols if they refused, and they would usually pay them with whatever money they had in their shop’s cash drawer, and whilst they did report the extortions to the police, they just came and took a statement from them without doing much else.

3.In February 2014 the gangsters started to demand bigger sums of 100,000 Pakistani Rupees, but when the applicant and his partner were unable to come up with the money, the gangsters then fired a shot and broke things in their shop with a warning that they would kill them if they still fail to pay them the money when they come back in a few days.  When the police again failed to do anything to help them, the applicant and his partner decided to close down their shop and the applicant went into hiding in his relatives’ place.

4.On 1 March 2014 the applicant decided to leave Pakistan for his own safety when he first flew to China and from Guangzhou he sneaked into Hong Kong on 10 March 2014 and subsequently lodged his non-refoulement claim with the Immigration Department, for which he completed his Non-refoulement Claim Form on 4 December 2015 with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 12 January 2016 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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”).

6.In his decision the Director found the absence or low intensity and frequency of ill-treatment from the gangsters indicative of a small future risk of harm upon the applicant’s return to Pakistan, that after having closed down his shop and without a business the applicant would no longer be their target for extortion, that in the absence of any evidence to suggest any involvement of the police in the extortions state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 199 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 young man with working experience to move to other areas away from his home district such as Lahore where he can live and work free of any threats from those gangsters.

7.By a Notice of Further Decision dated 24 October 2016 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 20 January 2016, and for which he attended two oral hearings on 2 and 25 November 2016 before the Board during which he however declined to give evidence other than confirming those materials already presented by him earlier and in the hearing bundle.  On 3 April 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found on the facts of the applicant’s case no real chance that he will be harmed by the gangsters, that he did not encounter any of them after closing down his shop, that state and police protection would be available to him upon his return to Pakistan, and that in his circumstances the question of internal relocation does not even arise.

10.On 26 May 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but in it he did not put forward any ground for his intended challenge, nor did he in his affirmation of the same date other than just repeating his claim that it would be dangerous for him to return to Pakistan, that he had requested his family to send him further proof and that the court should review those decisions of the Director and the Board.

11.Even now almost a year later in his leave application for judicial review the applicant did not produce any further proof referred to in his said affirmation in support of his case, and as noted by the Court of Appeal in TK v Jenkins & Anor [2013] 1 HKC 526, the court in judicial review does not sit on appeal from the Director or adjudicator’s decision in dismissing the claims, but instead only plays a supervisory role by looking at its legality under the public law involving usually the broad grounds of any error of law committed by the decision-makers or any procedural unfairness, or whether the decision is irrational or Wednesbury unreasonable in the public law sense.

12.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

13.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 8^th day of June 2018.

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