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

HCAL 2444/2018

[2020] HKCFI 1726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2444 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 29 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.Leave was granted to the applicant to amend Form 86 by deleting the Director of Immigration (“the Director”) as the respondent and by deleting the Board to be replaced by the Director as the interested party.

The applicant

3.The applicant is a Pakistani national. On 23 February 2016, he came to Hong Kong illegally from China. On 25 February 2016, he was arrested by police and handed over to the Immigration Department for investigation. On 28 February 2016, he raised a non-refoulement claim.

4.He claimed that if refouled, he would be harmed or killed by Ghafoor, Shakoor and Fazal who were the members of the Pakistan Muslim League (N) (“PML(N)”) because he had witnessed them involved in a murder case.

5.The incidents took place as set out below.

a.In June 2015, whilst he was walking in the street on his way to work in the morning, he saw supporters of the Pakistan Tehreek-e-Insaf party (“PTI”) fighting with supporters of PML(N). There were some 15 or 16 people. Ghafoor, Shakoor and Fazal were among them and they were holding guns. He heard gun shots and he ran away.

b.The next day, he read newspaper and discovered that five people were killed by PML(N) supporters.

c.Two weeks later, Ghafoor called and threatened to kill him if he reported the matter to police. He then called once a week, threatening him. He had gone to the police station to complaint, but the police officers did not take on his complaint.

d.Ghafoor had called him out and he together with another man then assaulted the applicant with bare hands.

e.He went to Karachi to live in one his friends’ house. His friend advised him to leave the country. He took the advice and left for China on 10 November 2015. On 23 February 2016, 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 29 June 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risks was low [11]; state protection [16] and relocation [17] were available to him.

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 August 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 for the reasons set out in the Board’s Decision, came to the conclusion:

“65. The final conclusion is that the Appellant’s claim is not credible and is, in fact, a story fabricated to mirror real events that he never witnessed and in which he was never involved. …”

Application for leave to apply for judicial review

11.The applicant filed Form 86 dated 2 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of this application, he said that he did not agree with the Board’s Decision. He considered that the Board had not fully studied his case and he was very depressed and disappointed that it refused his appeal without any reasonable ground.

DISCUSSION

13.The applicant appeared before me and he confirmed that he was free to present his case before the immigration officer and the Adjudicator of the Board. He understood the Director’s Decision and the Board’s Decision. He said that he respected the Adjudicator and he did not want to pass any comment on him. He simply wanted to tell me that he was suffering.

14.The Board rejected his evidence. He simply has no factual basis in support of his claim.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

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

CONCLUSION

17.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