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

HCAL 1629/2018

[2020] HKCFI 1023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1629 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. The applicant did not attend the hearing on 16 August 2019. The Court will therefore deal with the application on the papers.

2.I have identified that in Form 86, the applicant had named the Director of Immigration (“the Director”) as the respondent. The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018 held that the proper party should be the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) as the applicant had appealed the Director’s Decision to the Board.

3.Pursuant to the powers under O.53, r.3(6) and O.20, r.8 of the Rules of the High Court, I shall, on my own motion, rectify the above irregularity by deleting the Director and replacing him with the Board and so I do.

The applicant

4.The applicant is a Pakistani national. He came to Hong Kong illegally by boat from China in April 2009. He applied for non-refoulement claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (CAT). His application is akin to Part VIIC, section 37U of the Immigration Ordinance, Cap 115 (“the Ordinance”). His application was rejected by the Director and he did not appeal. He lodged a second non-refoulement claim on 22 January 2014 under the Unified Screening Mechanism.

5.In support of his claim, he said that if refouled, he would be harmed or killed by his paternal relatives and his late girlfriend’s family members. In brief, his grandfather had left a piece of land to his father and his uncle. His uncle occupied the land and refused to give him his father’s share. His uncle was a district counsellor for the Pakistan Muslim League (N) (“PML(N)”). He had three sons, one of whom was a police officer. Because of the land dispute, he was assaulted by his cousins together with other men in 2007 and February 2008. In August 2008, they came to his house carrying guns and wanted to shoot him.

6.At the same time, he met his ex-girlfriend. They stayed together and wanted to marry each other. But the girl’s family opposed. He had stayed in a hotel with his girlfriend for two days. He was arrested by police and was accused of kidnapping his girlfriend. He was assaulted inside the police station. He suspected it was instigated by his cousin. His girlfriend refused to give evidence against him. However, he had had a quarrel with her over the telephone. The next day, his girlfriend committed suicide and died. Her family was furious and her two brothers were looking for him for a revenge. With the assistance of his friend, he bribed the custom’s officer to leave Pakistan and flew to Urumqi. He then went to Shenzhen and sneaked into Hong Kong by boat.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 30 November 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 10 July 2018.

10.By Decision dated 6 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision came to the conclusion that it did not consider the applicant faced a real risk of Proscribed Harm from the uncle, the cousins, ad/or the family of his ex-girlfriend if he returned to Pakistan. Such conclusion was arrived at after having considered the evidence below.

a.     The applicant refused to answer questions on his ex-girlfriend. He merely relied on his statement to the Director [32].

b.     The applicant had given problematic evidence in relation to whether his uncle demanded his father sign the title deed of the land; whether he had checked title of the land at the Land Registry; whether his grandfather died before his birth and the size of the land [35].

c.     He refused to give evidence to clarify the doubts in relation to his ex-girlfriend, the alleged kidnap, her death and how he could manage to leave Pakistan if a charge was made against him [38].

d.     He refused to give evidence in relation to state protection and internal relocation [40].

Application for leave to apply for judicial review

12.He filed Form 86 dated 14 August 2018 for leave to apply for judicial review of the Director’s Decision and the Board’s Decision.

13.In his affirmation, he simply said that the Director’s Decision was unreasonable in that he failed to consider all the matters raised in his claim and he did not give adequate reasons for his decision.

DISCUSSION

14.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42]. The Board has given its reasons in support of its decision. This Court considers that those reasons are adequate reasons.

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 5^th day of June 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