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

HCAL 1658/2018

[2020] HKCFI 195

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1658 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 19 July 2019.

The applicant

2.The applicant is a Pakistani national. He was arrested by police on the Lantau Island on 22 August 2009. He said that he came to Hong Kong illegally by boat. He lodged torture claim on 25 August 2009.

3.In support of his claim, he said that if refouled, he would be harmed or killed by the relatives of 4 victims, who were shot dead by the applicant’s cousin in a dispute over a CD disc. Those relatives were affiliated with the Pakistan People’s Party. He and his cousin Ali Razzaq were seen at the scene. In fact, it was his other cousin Ali Abbas, who killed those people.

4.He claimed that the incident took place in 2008. The victims’ relatives had been looking for them whilst he and his cousin were moving from place to place between Lahore and Jhelum to avoid them. They finally came to Hong Kong. Subsequently, Ali Abbas surrendered himself. The victims’ relatives agreed to clear their names on the list. His cousin returned to Pakistan. He was captured and beaten up the victims’ relatives. Therefore, he would not return to Pakistan.

The Director’s Decisions

5.The Director first 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. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture 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 26 August 2015 and by a Notice of Further Decision dated 7 December 2016, collectively called “the Director’s Decisions”, 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 Decisions and he attended a hearing before the Adjudicator on 9 March 2017.

8.By Decision dated 30 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decisions.

9.The Board recorded in its Decision that the applicant elected not give evidence at the hearing. In the circumstances, the Board only assessed his evidence by comparing his evidence in the Non-Refoulement Claim Form and the Interview Report signed by him on 25 August 2009. Having considered the evidence, the Board came to the conclusions:

“38. As shown above the information given by the Appellant is conflicting and inherently incredible. I cannot base on such unreliable information to reach a conclusion in his favour. I therefore dismiss his appeal.

45. Since the beating up of Ali Razzaq in 2010, the Appellant has no longer become the target of the victims’ relatives for their revenge. Hence, his feared ill-treatment is unlikely to materialize, if he returns to Pakistan.

47. The above COI [Country of Origin Information] shows that state protection is available to him, upon his return to Pakistan. This would obviate or lower the risk of harm from the victims’ relatives.

48. In Pakistan, internal relocation alternatives are available, and this would further lower or obviate the risk of harm from the victims’ relatives.

50. He is 35 years old. It would not be unduly harsh for him to relocate to a place other than his home village in order to avoid the perceived risk from the victims’ relatives and to make a living there.”

Application for leave to apply for judicial review

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

11.In his affidavit, he said that his life was still in danger if he returned to Pakistan.

DISCUSSION

12.It is quite clear that the Board rejected all his facts in support of his claim. His application therefore has no factual basis.

13.He has raised no valid ground to challenge the Board’s Decision.

14.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. However, there is nothing to show that the Board had committed any error in reaching its decision.

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

CONCLUSION

16.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