Bashir Ahmed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1798/2018

[2020] HKCFI 1375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1798 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 24 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 did not attend the hearing on 14 November 2019 without any prior notice or explanation. I shall assess his case on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended 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 6 February 2016. He surrendered to the Immigration Department on 12 February 2016. He submitted to the Director a written representation dated 10 August 2016 and lodged a non-refoulement claim.

5.He claimed that if refouled, he would be harmed or even killed by Yasir, who belonged to Pakistan Muslim League (N) (“PML(N)”) due to personal vendetta.

6.He worked in a shoes factory where Yasir also worked. In mid- 2015, he saw Yasir steal goods from the factory in mid-night. He reported the matter to the administration. As a result, Yasir and three other persons were dismissed by the factory. Yasir bore grudge against him. Yasir and his friends went to his house and attacked him with wooden sticks. He sustained injuries of open wound on his head and had to receive medical treatment. It took him a month to fully recover. Yasir and his friends continued to harass him when he boarded the public transport for work. They also harassed his father who worked in the same factory.

7.He could not bear the harass and quitted his job. He moved to live in his maternal grandmother’s house without disturbance. Whilst living there, his father’s friend advised him to leave Pakistan for Hong Kong where it would be safe for him. He took the advice and came to Hong Kong through China.

The Director’s Decisions

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 September 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that his evidence showed that there were no substantial grounds for believing that there would be any real and substantial risk of him being harmed or killed by Yasir upon his return to Pakistan [12]; that state protection was available to him [16] and internal relocation was an option open to him [22].

The Board’s Decision

10.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 31 May 2018.

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

12.The Board considered the applicant’s evidence and found that it took no issue on his credibility [30]. However, it found that the applicant failed to establish a real likelihood of risks pertinent to any of the applicable grounds under the claim [62]. See §§33-61for the reasons.

Application for leave to apply for judicial review

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

14.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; the Board had unlawfully fettered its discretion; the Adjudicator had been unfair procedurally and its decision was unreasonable or irrational;

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

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. 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.

16.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. There is no evidence to show that the Board erred in the application of the laws to his case.

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

CONCLUSION

18.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

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