Hussain Shabeer v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1840/2018

[2020] HKCFI 1545

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1840 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 22 June 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 5 December 2019.

3.Leave was granted to the applicant to amend Form 86 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 through China on 29 September 2010 on the strength of his passport. But he was denied entry by the Immigration Department. On the same day, he lodged a torture claim.

5.He claimed that if refouled, he would be harmed or even killed by his brother-in-law, Parvez because he married his sister, Muriam, without his approval. Further Parvez did not like his sister to have converted from Christian to Islam in order to marry him. Muriam was his second wife. Parvez knew about their marriage and threatened to kill him three times whilst they met on the street. He was scared and decided to leave Pakistan for Hong Kong. In Hong Kong, he was told that his father and brother were kidnapped by Parvez and they were released after paying money to Parvez.

The Director’s Decision

6.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”).

7.By Notice of Decision dated 19 January 2017, 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 claimed by him was low [23]; that state protection was available to him [31] and internal relocation was an option open to him [33]. His claim under BOR2 risk was not established.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 27 April 2018.

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

10.The Board considered the applicant’s evidence and found that it did not accept that he was threatened by Parvez; that Parvez was a powerful person; that Parvez had kidnapped his father and brother and that he had a real risk of harm as he claimed if he returned to Pakistan [50].

Application for leave to apply for judicial review

11.The applicant filed Form 86 dated 5 September 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he said that he was not satisfied with the Board’s Decision. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

13.The applicant appeared before me and he confirmed that he was treated fairly before the immigration officer and the Adjudicator of the Board.

14.I put the Board’s findings to him for his comments. He said that he had no comments.

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

CONCLUSION

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

Dated the 14^th day of July 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