Khalid Mehmood v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1632/2018

[2020] HKCFI 970

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1632 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 2 August 2019.

The applicant

2.The applicant is a Pakistani national. He came to Hong Kong on 7 August 2004 as a visitor and was permitted to stay for 14 days. He overstayed. On 5 March 2009, he surrendered himself to Police and was arrested for illegal overstaying. He was referred to the Immigration Department and he raised torture claim.

3.In support of his claim, he said that if refouled, he would be harmed or killed by his brother-in-law named Liaqat Ali (“Ali”) because of their dispute over his sister’s martial problem where Liaqat refused to pay her maintenance. He and Ali had a fight. Ali was with some friends. He had broken the leg of one of Ali’s friends. He feared that they might take revenge against him. He considered himself to be in danger in Pakistan. He took his mother’s advice and left the country to come to Hong Kong.

The Director’s Decisions

4.As the applicant had made a torture claim similar to Part VIIC of the Immigration Ordinance (“the Ordinance”) and was rejected by the Director on 24 May 2012, 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”).

5.By Notice of Decision dated 17 December 2015 and Notice of Further Decision dated 10 July 2017, collectively called (“the Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

6.The applicant appealed to the Board against the Director’s Decisions and attended a hearing before the Adjudicator on 27 June 2018.

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

8.The Board considered the evidence before him and, for the reasons set out in the Board’s Decision came to the conclusion below.

a.     His claim was unsupported by any documentation or evidence that would assist in establishing a legitimate claim [37].

b.     The evidence did not ring true [38].

c.     His claim lacked credibility and he should be safe to return to his home [39].

d.     He would also be able to relocate to many places in Pakistan in safety [43].

Application for leave to apply for judicial review

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

10.In his affirmation, he said that he was not satisfied with the Board’s Decision and he was stilling having problem in his country.

DISCUSSION

11.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. There is no evidence that the Board had committed any error in coming to its decision.

12.The applicant’s evidence in his affirmation does not support his application.

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

CONCLUSION

14.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 29^th day of May 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