Shafi Kamran v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1906/2018

[2020] HKCFI 1551

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1906 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 20 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

3.The applicant is a Pakistani national. He came to Hong Kong on 16 May 2015 illegally and was arrested by police the next day. He was referred to the Immigration Department on 19 May 2015. He lodged his non-refoulement claim by way of written representation on 20 May 2015.

4.He claimed that if refouled, he would be harmed or even killed by the Taliban, al-Qaida and Daish agents.

5.He claimed that he was a paid informer for the police and the army through a police constable and an army officer, both of whom had been killed by Taliban, Al-Qaida and Daish terrorists. His identity was exposed because the army officer disclosed his identity to the Taliban terrorists, who then tried to kill him. Since then, he was put on the hit list by the Taliban, Al-Qaida and Daish terrorists. There were three incidents where he was nearly killed by the Taliban terrorists. The first incident was when he was living with his friend. His friend went to the toilet. The Taliban terrorists jumped over the wall and shot at the toilet. His friend’s leg was injured. He shot at the terrorists and other neighbours joined in. They left. The Second incident was when he was inside a bus, a Taliban terrorist tried to stab him with a knife from behind. He defended and his hand got injured. The terrorist escaped. The third incident was when he went to a restaurant with a friend, who parked his car outside the restaurant. Shortly after they got off the car and went to the restaurant, a bomb near his friend’s car exploded, killing one person nearby. He was not injured. He was quite sure that those attempts were done by the Taliban terrorists as he had no other enemies. He departed Pakistan for Hong Kong on 4 March 2015.

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 28 February 2018, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risks he claimed if he returned to his own country was low [13]; that state protection was available to him [15] and internal relocation was an option open to him [21]. His claim under BOR 2 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 16 July 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 the applicant’s evidence on the fact that he feared returning to Pakistan for the reasons he had claimed, or for any other reason. The Board did not accept the Taliban, Alqaida or Daish would harm or kill him for any of the reasons that he had claimed or for any other reason, if he returned to Pakistan. It also did not accept that the police and army persons who were involved with the Taliban, Alqaida or Daish would harm or kill him [135]. See §§95-136 for detailed reasons.

Application for leave to apply for judicial review

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

12.In his affirmation in support of his application, he relied upon the grounds below for his appeal.

1.The hearing bundle was not read to him and he does not understand English.

2.There was no language assistance for him for his appeal to the Board. The Board’s Decision was not translated to him. He did not understand the reasons why the Board refused his appeal.

DISCUSSION

13.The applicant appeared before me. He confirmed that he was treated fairly before the immigration officer and the Adjudicator of the Board. His lawyer had explained the Director’s Decision to him and his friend had explained the Board’s Decision to him.

14.The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.

15.His grounds are obviously inconsistent with his evidence before me. The Director’s Decision, which is in the hearing bundle and the most important document had been explained to him by his lawyer.

16.Since the Board rejected his evidence, he has no factual basis in support of his claim.

17.I asked him to comment on the Board’s findings. He said that his family was in danger as Taliban had captured them and demanded ransom for their release. However, these reasons seem not to be supportive for his application for asylum in Hong Kong.

18.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.

19.There is nothing that shows that the Board’s analysis was in error.

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

CONCLUSION

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

Dated the 15^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