Ali Babar v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1752/2018

[2019] HKCFI 3086

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1752 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.This is the applicant’s application for leave to apply for judicial review of the Decision dated 20 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

2.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 there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 17 September 2019.

The applicant

3.The applicant is a national of Pakistan. He came to Hong Kong from China Illegally and was arrested by police on 21 April 2016. He was referred to the Immigration Department for investigation. He lodged his non-refoulement on 23 April 2016.

4.He claimed that if refouled, he would be subjected to ill-treatment or even killed, by supporters of the Pakistan Muslim League (Nawaz) (“PMLN”), Raza, Adnan and their fifty companions, in his village because he was a supporter of Pakistan Tehreek-e-Insaf (“PTI”). He said that because PMLN and PTI were rival parties, PMLN members always wanted to kill him. His two close friends who were PTI supporters were killed in his village. Two other people were shot. PMLN people had hit them with wooden sticks. He was injured before he came to Hong Kong. He came to Hong Kong solely for avoiding them. He dared not report the matters to police because PMLN was the ruling party.

The Director’s Decision

5.The Director of Immigration (“the Director”) considered his application in relation to the following risks:

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

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”).

6.By Notice of Decision dated 28 February 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

7.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 17 July 2018.

8.By Decision dated 20 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s evidence. It came to the conclusions below.

a. For the reasons in paragraphs 80-104, it found that the applicant had not told the truth about being threatened or harmed or beaten or shot by members or supporters of PMLN or by Adnan and Raza and their companions because he was a supporter of the PTI or that he departed Pakistan because he feared the PMLN, or Adnan and Raza and their companions, or members or supporters of the PMLN [105].

b. It did not accept that the applicant would be harmed or killed as claimed if he returned to Pakistan [108].

c. For the same reasons, it did not accept that the applicant would be at risk if he returned to Pakistan [109].

Application for leave to apply for judicial review

10.The applicant filed Form 86 dated 27 August 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of this application, he said that he did not agree to the Board’s Decision and that his life would be in danger if he returned to Pakistan.

DISCUSSION

12.The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the Board. His lawyer had explained the Director’s Decision to him. His friend had explained the Board’s Decision to him.

13.I put the Board’s findings to him and asked him if he had any comments. He said that the Adjudicator did not properly considered his case. However, he was unable to identify what errors the Adjudicator had committed in coming to his findings.

14.It is obvious that the applicant failed to establish the facts in support of his claim before the Board. There is therefore no factual basis in support of his claim.

15.The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16.The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

17.Since the applicant’s application for 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 20^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