Dilsoz Ab Khaliq v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1645/2018

[2019] HKCFI 2963

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1645 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:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if the applicant had a fair screening before the Immigration office and the Board and if there are any further grounds in support of the application. In response to the Court’s letter, the applicants failed to appear before this Court. This Court will now consider his case on paper.

2.This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). However, the applicant had put in Security Bureau as the respondent, which is wrong. Had the applicant appeared in court, this error might be rectified immediately in court. In order to properly consider the applicant’s application, this Court shall proceed and treat the Board as the respondent as it is the only eligible party for the applicant’s application under the law. See Re: Moshsin Ali, [2018] HKCA 549 (CACV 54/2018) §45.

The applicant

3.The applicant is a national of Afghanistan. He arrived in Hong Kong illegally through China on 9 December 2014. On 16 February 2015, he was arrested by police and he lodge a non-refoulement claim.

4.The applicant was a government contractor for road construction works. In May 2013, Teliban wrote to him and told him not to do works for the government. He refused. His cousin family also received the same letter from Teliban. In early 2014, the applicant learned that his brother had been abducted by Teliban. He went to meet the Teliban in order to save his brother. He was detained and beaten with spherical ball made out of Scotch tape into which hard materials had been stuffed. He suffered severe pain and injury. He agreed to work for Teliban. His uncle in Kabul received a threatening letter at his home. He arranged the applicant to flee the country.

The Director’s Decisions

5.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 under RC”).

6.By Notice of Decision dated 23 August 2016 and another Notice of Further Decision dated 20 July 2017, collectively (“the Director’s Decisions”), the Director refused his claim for the reason that his claim was unsubstantiated.

The Board

7.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 24 April 2018.

8.By Decision dated 3 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decisions.

9.The Board considered the applicant’s case and, having considered the evidence, the Board found the facts below.

a. It disagreed with the Director’s Decision that the applicant failed to establish the claims [64].

b. It accepted the applicant’s evidence up to the stage of him being in Kabul because there was a very marked contrast between the quality of the evidence before he went to Kabul and the evidence after he had arrived there [66-72].

c. It accepted that there would be real risk if he returned to the local area of Paktia [77].

d. It disagreed with the Director that State protection would be available to the applicant [80 & 84].

e. It did not accept that if he returned to Kabul, Teliban would track him down [90].

f. The option of relocation to the capital city or to Kabul was open to the applicant and the option would not be too harsh for him [95].

g. For this reason, the applicant’s claim was unsuccessful.

Application for leave to apply for Judicial Review

10.In his Form 86, the applicant applied for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he simply said that he was not satisfied with the Board’s Decision and he felt that his life would be endangered if he was refouled to his own country.

DISCUSSION

The Board’s Decision

12.It is quite obvious that the Board had examined the evidence conscientiously. It accepted the significant parts of the applicant’s facts. It applied the relevant laws and the Convention to those facts. He was entitled to come to his conclusion.

13.The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held that the Director and the Board alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation [14].

14.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].

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

CONCLUSION

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

Dated the 6^th day of December 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