Adnan Haider v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1614/2018

[2020] HKCFI 193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1614 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 (“RHC”), 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 July 2019.

2.The applicant had wrongly named the respondent. Leave was given to him to amend Form 86 to put in the proper name of the respondent.

The applicant

3.The applicant is a Pakistani national. He came to Hong Kong on 5 June 2012 illegally and was arrested by police on 7 October 2012. He lodged a torture claim with the Director on 9 October 2012. On 27 December 2013, the Director refused his torture claim. On 31 December 2013, he applied to the Director to lodge a non-refoulement claim.

4.In support of his claim, he said that if refouled, he would be serious harmed by his relative, Khuram, because of a land dispute.

5.His grandfather had bequeathed three portions of land to his father, his elder brother and his aunt adopted by his grandfather. His aunt passed away and bequeathed her share of land to her grandson, Khuram, who wanted to occupy his father’s land to erect a building. Khuram put the building materials on his father’s piece of land. He had a dispute with him and they fought together. He was injured on his lips which had to be stitched. Khuram was a police officer of the region and was member of the Pakistan Muslim League- Nawaz, the ruling party in Pakistan. The matter of trespass was reported to the police. However, Khuram had reported the matter to the police before them, accusing him of stealing land from Khuram. He moved around in order to avoid the police and Khuram. With the assistance of his friend, he came to Hong Kong.

The Director’s Decision

6.Since he had made his statutory torture claim and failed, the Director considered his application in relation to the following risks:

a. 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”);

b. 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

c. 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”).

7.By Notice of Decision dated 15 January 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 8 May 2018.

9.By Decision dated 16 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decisions.

10.The Board considered the applicant’s evidence, the Board accepted his stories and that he might be subjected to the risks above. Yet it rejected his appeal and confirmed the Director’s Decision for the reasons below.

a. It did not accept that there were substantial grounds to believe that there was a real risk that he would be subjected to BOR 3 risk if he returned to Pakistan [57].

b. Furthermore, it considered that reasonable relocation was an option open to him [58].

c. The fact that the risks came from Khuram did not fall within the context of Persecution risk [63]. State protection should be available to him [64-66] and relocation was also available to him [67].

d. There was simply no ground for him to claim BOR 2 risk in this case [70].

Application for leave to apply for judicial review

11.He filed Form 86 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation, the applicant simply repeated his facts that Khuram was a powerful person in Pakistan and that his life would be in danger if he returned.

DISCUSSION

13.The applicant appeared before me and he confirmed that he was able to speak freely and tell his stories fully before the Board.

14.I put those findings to him and asked him for his comments. He said that he had no comments.

15.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review.

16.The facts include state protection and reasonable relocation. The Court of Appeal in Bah Mohamed Bachir v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and Director of Immigration [2019] HKCA 462, 18 April 2019 held:

“15. … …Assessment of evidence and Country of Origin Information (“COI”) materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.There is no evidence to show that the Board had committed any error in reaching its decision.

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

CONCLUSION

19.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 15^th day of January 2020

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