Case Document

100%Judiciary

HCAL 1796/2018

[2020] HKCFI 1374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1796 of 2018

BETWEEN

	Khan Kamal Ahmed	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 oral submission by the Applicant 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 8 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 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 14 November 2019.

3.Leave was granted to the applicant to amend Form 86 by deleting the Board and replaced by Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a Pakistani national. He came to Hong Kong illegally on 30 September 2014 and was arrested by police on the same day. He was referred to the Immigration Department the next day. He submitted a written representation dated 2 October 2014 and lodged a non-refoulement claim.

5.He claimed that if refouled, he would be harmed or even killed by Ghalib Khan’s family and he would be ill-treated by the Pakistani police.

6.There was a blood feud between his family and Ghalib Khan’s family, who were supported by Pakistan Muslim League and had connection with many politicians in Punjab including one Major Tahir. Because of the disputes, he was once arrested by police and there were court cases against each other. The Ghalib Khan’s family decided to take the law in their own hands and planned to seriously harm or to kill him. He had moved to live in some other places in order to avoid them. The Ghalib family had also made false accusations against him. He feared that police might torture him if he returned to Pakistan.

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 13 April 2018, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that his evidence showed that the nature, intensity, frequency and mode of attack and harassment did not attain a minimum level of severity [12]; that state protection was available to him [17] and internal relocation was an option open to him [25].

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decisions. 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 generally the applicant was not a reliable witness [184]. State protection would be available to him [182]. The facts found did not support the risks claimed and BOR 2 was not established. See §§185-196.

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 31 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.He relied upon the grounds below in support of his application.

1.     Procedural impropriety/unfairness - failure to consider relevant evidence or investigate the country of origin information of Pakistan.

2.     Erred in law in that the Board failed to find that his enemies did not come within the meaning of populace; the assaults amounted to torture; in rejecting hearsay evidence.

3.     Failed to apply high standards of fairness and the hearing bundle was without translation and also it relied upon sources of news not officially recognized or were hearsay resulting in it speculation.

DISCUSSION

14.The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the adjudicator. His lawyer had explained the Director’s Decision and the interpreter had explained the Board’s Decision to him.

15.I put the Board’s findings to him and asked him if he had any comments on them. He said that he had no comments.

16.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. the applicant cannot complain that the Board had not considered the evidence which he/she did not adduced at the appeal hearing unless the Board has the duty to elicit such evidence on its own volition.

17.All those grounds above will not assist him as some of them are his opinions without any evidence or particulars in support of them, the others are simply not relevant to the findings of the facts by the Board.

18.The applicant is unable to show that he has 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 30^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 30/6/2020 Khan Kamal Ahmed 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 30/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11268/18/4/278/P2192 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 650/18 (formerly RBCZ 3001890/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)