Rasheed Adil v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1874/2018 on BabelCite. This High Court CFI judgment was delivered on 24 June 2020.
1. This is the applicant’s application for leave to apply for judicial review of the Decision dated 3 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“ the Board’s Decision ”).
Cites 2 cases
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HCAL 1874/2018 [2020] HKCFI 1287 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1874 of 2018
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:
Observations for the Applicant: THE APPLICATION 1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 3 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). 2.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, 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 8 January 2020. 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 adding the Director of Immigration (“the Director”) as interested party. The applicant 4.The applicant is a Pakistani national. He came to Hong Kong on 20 February 2016 illegally. He lodged his non-refoulement claim on 22 February 2016. 5.He claimed that if refouled, he would be harmed or even killed by Taliban in his neighbourhood because of sectarian difference. 6.He belonged to the Shia Sect. His neighbouring Sunni Sect supporters asked him to join them. He refused. About 5 or 6 years ago, there was suicidal bombing, resulting hundreds of deaths at the praying place. Because of his refusal of joining the Sunni Sect, he was assaulted by the Sunni Sect people by kicking and slapping on his face for a couple of times. He was also run over by a vehicle driven by the Sunni people. He felt unconscious and had to receive medical treatment in hospital as his right leg was injured. He was threatened from time to time. He decided to leave Pakistan for Hong Kong. The Director’s Decision 7.The Director considered his application in relation to the following risks:
8.By Notice of Decision dated 20 December 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that there were no substantial grounds for believing that he would be harmed or killed upon his return to Pakistan [11]; that state protection was available to him [19] and internal relocation was an option open to him [20]. His claim under BOR 2 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 21 June 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 it accepted that the applicant was intimidated by the presence of radical Sunni Muslims who may have been Taliban supporters in his local area. It accepted that those people might have made threatening remarks on the basis of his Shia faith, but it did not believe that any such verbal threats were accompanied by violence of any kind, or that they represented a serious threat of harm to the applicant. It did not accept that the Taliban attempted to deliberately hit him in a car, which if happened, was only an accident. It did not accept that the Taliban had assaulted him and they had gone to his house to look for him [39]. See §§25-39 of the Board’s Decision. Application for leave to apply for judicial review 12.The applicant filed Form 86 on 10 September 2018 for leave to apply for judicial review of the Board’s Decision. 13.In his affirmation in support of his application, he said that he disagreed with the Board and he would be in danger if he returned to Pakistan. He did not set out the grounds in support of his application. DISCUSSION 14.He appeared before me and confirmed that he was treated fairly by the immigration officer and the Adjudicator of the Board. His lawyer had explained the Director’s Decision to him. The interpreter of the Board had also explained the Board’s Decision to him. He had no comments on the Board’s findings. 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.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. 17.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review. CONCLUSION 18.I therefore refuse to grant leave to the applicant to apply for leave for judicial review. Accordingly, I dismiss his application. Dated the 24th 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
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