Ahmed Naeem v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 1620/2018 on BabelCite. This High Court CFI judgment was delivered on 27 February 2019.
1. This is the applicant’s application for leave for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“ the Board ”) and the Director of Immigration (“ the Director ”).
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HCAL1620/2018 [2019] HKCFI 457 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1620 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge K.W. Lung:
Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung): THE APPLICATION 1.This is the applicant’s application for leave for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”). The applicant 2.The applicant is a Pakistani national. On 12 February 2015, he came to Hong Kong illegally. He surrendered himself to the Immigration Department on 18 March 2015. On 8 July 2015, he made an application for non-refoulement. 3.He claimed that if he were to be returned to Pakistan, he would be harmed or killed by the family members of his paternal aunt’s husband and his family, with whom he had business and land disputes. 4.In his statement given to the Director, the applicant said that his family was in the cattle business with his paternal aunt’s husband, Khalid, who had three sons. Khalid was a dishonest person, taking money from the business from time to time. Khalid also occupied part of his land for his own business. The applicant was not happy with him and proposed to cease the business partnership with Khalid, who was furious about it. In 2014, on two occasions, Khalid brought with him a number of people with weapons to the applicant’s home where they were confronted. Khalid attacked him. The applicant suffered injuries. The applicant reported the matters to the police. The police did not take action against Khalid, but framed up false charge of killing Khalid’s daughter-in-law with intent. The applicant left the place and lived somewhere else. He finally decided to come to Hong Kong. The Director’s Decision 5.The Director considered his application in relation to the following risks:
6.By Notice of Decision dated 17 November 2017, the Director refused his application for the reason that his non-refoulement claim was not substantiated. The Board 7.The applicant appealed to the Board. On 10 May 2018, he attended a hearing before the Adjudicator, who heard evidence from the applicant. 8.By Decision dated 27 July 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision. 9.The Adjudicator generally accepted the applicant’s evidence on the facts of his claim. [31] & [34] 10.The Adjudicator found that the disputes were between private individuals and not public officials and there was no involvement of any agents of the state of Pakistan. [47] & [48] The fears from Khalid’s family did not come within the definition of torture under section 37U(1) of the Immigration Ordinance, Cap. 115. [50] 11.Although the Adjudicator accepted that the applicant might be subject to harm by Khalid’s family, he found that the applicant was able to relocate to some other cities in his own country such as Karachi or Hyderabad. [61] Pakistan government was able to provide him with protection, given the function system of law and order there. [69] 12.The Adjudicator also found that the disputes were pure personal, nothing to do with the factors or elements within the Persecution risk under RC. [67] 13.Finally, the Adjudicator did not accept that the applicant would be subject to BOR 2 risk. [73] Application for leave for judicial review 14.By Form 86 dated 13 August 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision. 15.In his affirmation in support of his application dated 13 August 2018, the applicant set out the reasons in support of his application below:
DISCUSSION The Director’s Decision 16.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decision. 17.Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine. 18.For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision. The Board’s Decision 19.In this case, it is quite obvious that the Adjudicator had held a different view from the Immigration officer in relation to the credibility of the applicant’s evidence. The Immigration officer found the applicant’s assertion that he would be harmed or killed by his paternal aunt’s husband and his men or family members upon return to Pakistan far-fetched and speculative. See paragraph 15 of the Director’s Decision. But the Adjudicator gave the applicant the benefit of the doubt and accepted his story. It was on this basis the Adjudicator assessed the applicant’s claim. 20.It is also obvious that the Adjudicator had considered the applicant’s case within the contexts of the four risks set out in paragraph 5 above. He turned down the applicant’s appeal because the applicant’s alleged torture did not fall within the definition of the relevant statutory provisions and the Conventions and that the option of relocation was available to the applicant. Pakistan is also able to provide him with protection for his case and that BOR 2 risk simply does not exist. 21.At the hearing before me, the applicant said that he had no complaint against the Adjudicator. He was only dissatisfied with his decision of refusing his appeal. He did not complain that there was no translation of the Board’s Decision to him. Ground (1) therefore dose not sustain. 22.Ground (2) relates to the discretion of the Immigration officer and the Adjudicator in the assessment of the evidence before them. They are entitled to exercise their respective discretion to balance the various views in relation of COI. This Court simply should not interfere with their discretion. This ground fails. 23.Ground (3) is only his opinion without any evidence in support of it. It fails. 24.It is obvious that the applicant was aware of his application for leave for judicial review of the Board’s Decision. He had not made further submissions before this Court. Ground (4) fails too. 25.I find that the applicant was unable to show that he has a reasonable chance of success in his proposed judicial review. CONCLUSION 26.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave. Accordingly, I dismiss his application. Dated the 27th day of February 2019
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
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