Case Document

100%Judiciary

HCAL 1702/2018

[2020] HKCFI 1107

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1702 of 2018

BETWEEN

	Altaf Amir	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

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 4 July 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 Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a Pakistani national. He came to Hong Kong on 11 July 2016 illegally and was arrested by police on 16 July 2016. He lodged a non-refoulement claim on 18 July 2016.

5.He claimed that if refouled, he would be harmed or even killed by his paternal uncle Muhammad Afzal (“Afzal”) in Pakistan.

6.His father and Afzal inherited a piece of land from their father, the applicant’s grandfather. In September 2012, Afzal asked his father to give his portion of land to him. His father refused thereupon they fought together. The applicant joined in the fight and suffered minor injuries. He was arrested by police, but was released after his father had bribed the police officers. However, he met Afzal on the street. Afzal accused him of disrespecting him and hit him with a stick for five minutes and slapped his face. Afzal further threatened that he would kill him. Upon his parent’s advice, he left Pakistan for Hong Kong.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 19 December 2016, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk as he claimed if he returned to Pakistan was low [17]; that state protection was available to him [24] and internal relocation was an option open to him [27]. His claim under BOR2 risk was not established.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 3 April 2018.

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

11.The Board considered the applicant’s evidence and found that he gave inconsistent evidence to the immigration officer and the Board and was unable to explain the discrepancies [39]; that the risk of him being harmed by Afzal was low [47] and that he might relocate to live in other places in Pakistan [51].

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 21 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he did not set out any grounds in support of his application. He did not say what error the Board had committed in coming to its decision. He simply intended to submit a copy of a First Instance Report filed by his uncle regarding the incident on 15 October 2012 without saying why this incident was relevant to his application. He was absent at the hearing. I was unable to clarify this point with him.

DISCUSSION

14.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.

15.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 conclusions on the facts of the case.

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

CONCLUSION

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

Dated the 10^th day of June 2020

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 10/6/2020 Altaf Amir Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 10/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5718/17/1/2/P1269 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2206/16 (formerly RBCZ 12672/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

Cites 1 case

Cases cited in this judgment

Nupur Mst v. Director of Immigration

Cited by 1 case

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