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

HCAL 2413/2018

[2020] HKCFI 1666

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2413 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 31 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office.

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 (“RHC”), 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 10 September 2019.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“RHC”), Form 86 was amended by deleting Immigration Department in the column for respondent to be replaced by “Torture Claims Appeal Board (TCAB)”; also, the decision for the application be amended to the Board’s Decision dated 31 August 2018.

The applicant

4.The applicant is a national of Pakistan. He first came to Hong Kong on 1 May 2007 as a visitor. He then made numerous trips to Hong Kong from 2007 to 2015. He last arrived in Hong Kong on 28 November 2015 and was allowed to stay as a visitor for 14 days. He extended his stay until 15 December 2015. He overstayed since 16 December 2015 and he surrendered to the Immigration Department on the same day. On 13 July 2016 he applied for non-refoulement protection via his then legal representative. He claimed he feared he would be killed by people claiming to be the Taliban upon his return to Pakistan.

5.He claimed that in July 2013, August 2014 and October 2015 respectively, he had been blackmailed to pay money to those who called or he would be killed.  He had paid one million Rupees in July 2013 and one million Rupees in August 2014 respectively. In September 2015, the demand raised to 2.5 million Rupees. He believed that his neighbour was murdered because he refused to pay the ransom. He had been threatened by a motorcycle rider, who stopped the motorcycle beside his car firing a shot to the sky. He was scared. He had reported the case to police. But he did not expect protection from the police.

The Director’s Decision

6.The Director considered his application in relation to the following risks:

a.torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

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 21 December 2016 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

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 April 2018 and 7 June 2018 respectively. Both the applicant and the Director were legally represented.

9.By Decision dated 31 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

10.The Board considered the applicant’s evidence. It came to the conclusions for the reasons set out below.

a.For the reasons in paragraph 22, it found “a lot of contradictory and inconsistent statements which made his case unreliable. In particular, he only came to make a big profit and not for non-refoulement protection.”

b.“Having carefully considered all the evidence I find that the Petitioner has not made out a case in respect of any of the aforesaid 4 grounds for reasons hereinafter appearing: …” State protection is available upon his return to Pakistan [28]. There was no real risk of torture [28(v)]. There was no evidence of BOR 2 risk [32]. Persecution risk was not established [39], and internal relocation was available to the applicant [44].

Application for leave to apply for judicial review

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

12.He did not set out any reasons in his affirmation to show where the Board’s Decision is wrong.

DISCUSSION

13.The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the Board.

14.I put the Board’s findings to him and asked him if he had any comments. He repeated what he had said before the Board and said that the Board should not reject his evidence.

15.It is obvious that the applicant failed to establish the facts in support of his claim before the Board.

16.The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 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.

17.The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

18.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

Dated the 22^nd 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