Ahmad Bilal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1686/2018

[2020] HKCFI 1098

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1686 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 6 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant asked for a hearing. However, he was absent without prior notice or explanation on 24 January 2020. I shall therefore consider his application on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Director of Immigration (“the Director”) as the proposed respondent and by adding the Director as interested party.

The applicant

4.The applicant is a Pakistani national. He came to Hong Kong on 9 or 10 September 2015 illegally through China. He surrendered himself to the Immigration Department on 14 September 2015. He lodged a non-refoulement claim on 17 August 2016.

5.He claimed that if refouled, he would be harmed or even killed by Riaz due to a land dispute and that he would be arrested by police for a fake murder case.

6.Riaz was a businessman belonging to the Pakistan Muslim League N (“PML(N)”). His father was a supporter of the Pakistan Tahrek-E-Insaf (“PTI”). Riaz dispossessed of his father’s piece of land. His father took out a legal proceeding for recovery of the land from Riaz. For this reason, Riaz murdered his father and remained occupying his father’s land. Riaz was convicted and sentenced to a few years’ imprisonment. However, he bribed the authority and was released early. He sought to reopen the land dispute case and Riaz was angry. He was beaten up by Riaz’s people on 6 May 2014 whilst he was on his way home. He was beaten unconscious. He was saved by a passer-by and was taken to a hospital where he stayed for two weeks.

7.In August 2014, there was a protest by PTI and he participated. The PTI people were tortured by police and PML(N) members. During the protest, some police officers were killed. Riaz framed him to be a murderer of the policemen. Therefore, he had to leave Pakistan for Hong Kong.

The Director’s Decision

8.The Director 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.     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”).

9.By Notice of Decision dated 6 February 2018, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the evidence provided by the applicant was not reliable for believing that he would be harmed or killed by Riaz upon his return to Pakistan [12]; that state protection was available to him [20] and internal relocation was an option open to him [25]. His claim under BOR2 risk was not established.

The Board’s Decision

10.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 25 May 2018.

11.By the Board’s Decisions, the Board rejected his appeal and confirmed the Director’s Decision.

12.The Board considered the applicant’s evidence and found that his evidence in relation to his father’s murder was not reliable and that the death certificate of his father was fabricated [62]; that there were inconsistencies in his evidence [70-75]. The Board came to conclusion that all his factual evidence in support of his claim were not accepted and that he did not face a real chance of harm now and in the foreseeable future in Pakistan [76 & 77].

Application for leave to apply for judicial review

13.The applicant filed Form 86 on 20 August 2018 for leave to apply for judicial review of the Board’s Decision.

14.In support of his application, he attached the grounds to Form 86, which I summarize below:

1.     the Board did not give sufficient weight to the country of origin information;

2.     it was speculative to say that the Pakistani government had taken practical steps to monitor the conduct of Pakistani police and corruption and incompetency of the Pakistani police were still extremely serious;

3.     high standard of fairness must be observed; and

4.     such high standard of fairness required the Board to ask the question whether reasonable protection had in fact been provided instead of would be provided.

DISCUSSION

15.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal 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.Grounds (1) and (2) are his opinions without any evidence or particulars. Grounds (3) and (4) should be considered together. They are misconception on the burden of proof. The burden is on the applicant to show that his country was unable to provide reasonable protection for his safety. The Board has to rely on country of origin information to verify his evidence. All of his grounds fail.

17.There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusion on the facts of the case.

18.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

19.I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.

Dated the 9^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