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

HCAL 2438/2018

[2020] HKCFI 1732

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2438 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 30 October 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 adding in the column for respondent “Torture Claims Appeal Board (TCAB)”.

The applicant

4.The applicant is a national of Pakistan. He came to Hong Kong from China Illegally and was arrested by police on 30 November 2013. He lodged a non-refoulement claim on 4 December 2013.

5.He claimed that in 2000 the Shia community built their Imanbargah near his mosque. The trouble-makers were Aslam, Ansar and Ashraf. They threatened to hurt him and paralyzed him. In 2003 and 2004 when he was working in Karachi, they were there to cause him troubles by threatening him and throwing his clothes away. He had been to Lahore in 2008 and Oman in 2009. They were following him. They got someone to poison him in Oman. In 2013, they came to his home in Oman with pistols and guns. They assaulted him and fire shots in the air to threaten him. He reported to police, which did not take up the case. He complained to the Magistrate, but nothing happened. In July 2013, they came to his house with other people to attack him for at least 10 times. They brought in the police officers to take him to police station where they threatened to charge with false charges. In November 2013, he came to Hong Kong.

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 24 May 2017 (“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 25 and 28 June 2018 respectively.

9.By Decision dated 30 October 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 below.

a.For the reasons in paragraphs 32-75, having tested the applicant’s evidence, it rejected his evidence and confirmed that he had told a far-fetched story which was inherently implausible, extrinsically unsupported by objective Country of Origin Information materials and inconsistent. The Board said that it had no doubt that it was a fabricated story. It did not accept that he was ever threatened or assaulted. It did not accept that he came to Hong Kong due to a fear for his life and safety [76].

b.Even if what he alleged were right, he had state protection [99].

c.Internal relocation was also an open option to him [130].

Application for leave to apply for judicial review

11.He filed Form 86 dated 2 November 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 said that he had no comments.

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 28^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