Shah Hasnain Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1785/2018 on BabelCite. This High Court CFI judgment was delivered on 30 June 2020.
1. This is the applicant’s application for leave to apply for judicial review of the Decision dated 27 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“ the Board’s Decision ”).
Cites 3 cases
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HCAL 1785/2018 [2020] HKCFI 1371 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1785 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review 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 27 August 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 CACV 8/2018, [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 28 November 2019. 3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, Form 86 is amended by deleting “non refoulement claim office” and replaced it by Director of Immigration (“the Director”) as interested party. The applicant 4.The applicant is a Pakistani national. He came to Hong Kong on 12 December 2015 illegally through China and was arrested by police on the same day. He lodged a non‑refoulement claim on 15 December 2015. 5.He claimed that if refouled, he would be harmed by his paternal uncle Farooq Shah for the purpose of inserting pressure on his father to give up his share of land which was inherited from his late grandfather to his father and 3 uncles. He also feared that he might be harmed by uncle Farooq because he did not vote for Pakistan Tehreek Insaf (“PTI”), which uncle Farooq supported. 6.Because of the dispute over the land inherited from his grandfather, uncle Farooq had attacked his father with gun shots, injuring his father. He was also attacked by uncle Farooq once. At the election time in June 2015, uncle Farooq and his people of PTI came to his house and required him and his brothers to vote for PTI. He refused. They vandalized his house. He moved to live in his maternal uncle’s house for a few months. His father arranged him to come to Hong Kong. The Director’s Decision 7.The Director considered his application in relation to the following risks:
8.By Notice of Decision dated 15 January 2018, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the risks he claimed upon his return to Pakistan were low [17]; that state protection was available to him [20] and internal relocation was an option open to him [30]. The Board’s Decision 9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 9 July 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 the applicant failed to establish any of his claimed risks. See paragraph 42-62. It also found that internal relocation was also an option open to him [68]. Application for leave to apply for judicial review 12.The applicant filed Form 86 dated 30 August 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 did not agree with the Board’s Decision. He did not say what error the Board had committed in coming to its decision. 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.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review. CONCLUSION 16.I therefore refuse to grant leave to the applicant to apply for leave for judicial review. Accordingly, I dismiss his application. Dated the 30th 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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