Amir Shahzad v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1673/2018

[2019] HKCFI 783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1673 of 2018

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 the Applicant in open court;

Order by Deputy High Court Judge Woodcock:

Leave to apply for judicial review be refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a Pakistani national who entered Hong Kong illegally on 6 August 2015 only to be arrested the following day.  He lodged a non-refoulement protection claim on 11 August 2015 which was rejected by the Director of Immigration (“the Director”) on 23 October 2017.  The applicant filed an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which dismissed his appeal on 9 August 2018.  The applicant filed a notice of application for leave to apply for judicial review on 20 August 2018.  He did not request an oral hearing.  I have considered his application on the papers.

2.The basis of the applicant’s claim is that if he were to return to Pakistan, he faces the risk of harm or death from members of the Pakistan Muslim League (N) (“PML(N)”), in particular two of its supporters he names.  Both the Director and the adjudicator set out the applicant’s evidence and claim in detail in their decisions therefore, there is no need for me to repeat it.

3.The applicant’s father was a member of the Pakistan People’s Party (“PPP”) and the applicant himself was a supporter.  His father used to be active in the party and run for elections with the applicant helping him during his campaigns.  The applicant became embroiled in a political conflict with two members of the PML(N) who wanted him to defect or change his allegiance to their party.  When he refused, this began a series of conflicts, threats and assaults involving the applicant during PPP gatherings and events.  They even filed false police reports against the applicant.  This led to the applicant going into hiding in March 2015 and eventually leaving Pakistan out of fear on 2 August 2015.

4.The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

a.  risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

c.  risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

d.  risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

5.The applicant’s supporting affirmation contains no grounds.  He only writes that he was not satisfied with the TCAB decision and he cannot go back to his home country this moment.  He asks for assistance to stay in Hong Kong until his problems at home are solved.  The applicant was given a further opportunity in January 2019 when this court wrote to him asking if he had any further submissions to make.  He did send in some documents but they were documents produced by him during the hearings before the Director and the TCAB as well as a copy of his answer 35 in his non-refoulement claim form.  That answer 35 is his evidence.

6.The adjudicator treated the appeal as a rehearing and directed that an oral hearing be conducted.  She set out the law and key legal principles applicable to all four grounds.  She set out the applicant’s evidence and what transpired during that hearing.  She warned him on many occasions that she had questions she wished to clarify with him but he refused to answer or expand on his evidence.  She explained that she was giving him an opportunity to explain certain discrepancies or queries and he requested she not ask any questions of him.

7.The adjudicator set out in great detail the reasons why she rejected the applicant’s evidence.  She was not satisfied that he was telling the truth and found that he had fabricated his claims in order to apply for non-refoulement protection and extend his stay in Hong Kong.

8.She concluded that the applicant had not made out a successful case on any of the four applicable grounds.  He was unable to show he was at risk of torture, CIDTP or persecution if refouled to Pakistan.  He failed to show that returning to Pakistan would expose him to a real risk of a violation of his right to life so as to constitute a breach of BOR 2.  The adjudicator confirmed the decision of the Director.

9.Even though there are no grounds relied on by the applicant, I did examine and scrutinised the adjudicator’s decision to ascertain whether she made any errors of law and whether she analysed the appeal/petition with a high standard of fairness as is required.  I considered whether the application of the enhanced Wednesbury test was satisfied.

10.I found no failings on the part of the adjudicator.  I found no errors of law nor any evidence of procedural unfairness.  She did not fail to adhere to a high standard of fairness.  There is no realistic prospect of success and I refuse leave to apply for judicial review.

Dated the 17^th day of June 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

Form CALL-1