Abbas Tasawar v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL1597/2018

[2019] HKCFI 1658

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1597 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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party.

The applicant

2.The applicant is a Pakistani national. He arrived in Hong Kong by boat illegally on 29 December 2012. He was arrested by police on 26 June 2013 for overstaying. He lodged his non-refoulement claim on 29 July 2013. He had married a Hong Kong permanent resident on 10 May 2017.

3.In his statements given to the Director and the Board, he claimed that if he was returned to Pakistan, he would be harmed or killed by the people of the Shia sect because he belonged to the Sunni sect. The Shia members invited him to join them in 2010. He refused. In 2010, he was attacked by the Shia people with iron chains and sticks for 15 minutes and he had suffered injuries for which he had to stay in the hospital for three weeks. He had reported this incident to the police. But the police did not follow it up with investigation. He had attempted to move around in Pakistan to avoid them. Also, he had gone to China and Malaysia in 2011 and 2012. He attempted to settle this business with the Shia people, but was in vain. He was attacked again by the Shia people with iron rods and sticks and he sustained injuries. He left Pakistan for China in December 2012 where he paid HK$12,000 to HK$15,000 for a boat ride to Hong Kong.

The Director’s Decision

4.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

5.By Notice of Decision dated 15 December 2015 (“the Director’s Decision”) and Notice of Further Decision dated 19 June 2017 (“the Director’s Further Decision”), collectively called “the Director’s Decisions”, the Director rejected the applicant’s claim for the reasons that his claim was not substantiated.

The Board

6.The applicant appealed to the Board and attend the hearing before the Adjudicator on 28 June 2018. The Adjudicator heard his case de novo.

7.By Decision dated 2 August 2018 (“the Board’s Decision”), the Board refused the applicant’s appeal and confirmed the Director’s Decisions.

8.The Board considered the applicant’s evidence and found that his evidence was not credible [68]. The Board set out the analyses and reasons for such conclusion in the following paragraphs: 69-76. For this reason, the Board considered that it was unnecessary to consider relocation. However, it was prudent to take this factor into consideration lest its conclusion might be disagreed. The Board found that he could relocate in any one of the 55 towns in Pakistan [77].

Application for leave to apply for judicial review

9.In his Form 86 dated 10 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 Board’s Decision.

10.In his affirmation in support of his application dated 10 August 2018, the applicant relied upon the following grounds:

(1)   the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

(2)   the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

(3)   the applicant was confused at the appeal hearing; and

(4)   the Board had relied on the source of news not officially recognized or hearsay or outdated.

DISCUSSION

The Board’s Decision

11.The applicant appeared before me. He confirmed that the Director’s Decision was explained to him by his lawyer. His friend had explained to him the hearing bundle before the appeal hearing and the Board’s decision. He considered he had had a fair hearing before the Adjudicator. He had no complaint against the Adjudicator. He made this application because his problem in Pakistan had not been solved and he could not go back to Pakistan.

12.Grounds (1), (2) and (3) are inconsistent with what he said in court. They fail.

13.Ground (4) is only his opinion without any evidence in support of it. It fails.

14.The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

15.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for judicial review. Accordingly, I dismiss his application.

Dated the 2^nd day of July 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