Haider Khalil v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2448/2018

[2020] HKCFI 1735

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2448 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 19 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 and by adding the Director of Immigration (“the Director”) as interested party.

The applicant

3.The applicant is a Pakistani national. He had come to Hong Kong 19 June 2012 illegally and was arrested by police on the same day. He lodged a non-refoulement claim on 21 June 2012.

4.He claimed that if refouled, he would be harmed or killed by the Pakistani authorities on the behest of a politician named Mr. Nawab Farhat Ullah Khan (“Nawab”).

5.The incidents took place as set out below.

a.He was a supporter of the Pakistan Peoples Party, a rival party to Pakistan Muslim League Nawaz, to which Nawab belonged. In 2010, Nawab’s party won the election and assumed power in his province.

b.From 2010, Nawab took him and his party to court on various cases. In 2011, after a court case, Nawab and his people attacked him and his group of people. People of both sides were injured. He reported to police. The police refused to make investigation into the matter.

c.He was beaten outside a Shia Mosque by Nawab’s people with wooden sticks and kicks in his ribs. He reported the matter to police. The police refused to take up the matter. He took the matter to court, but his case was dismissed for want of witnesses.

d.In November 2011, he worked in Lahore as a cook. In December 2011, around 10 people came to the restaurant and attacked him and he was badly hurt. He reported it to police. The police refused to take up the matter.

e.In early January 2012, there was a heavy gun firing at the place where he lived. He lied on the floor and crawled slowly outside and escaped. He decided to leave Pakistan.

The Director’s Decisions

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 September 2015 and Notice of Further Decision dated 6 March 2017, collectively called the (“Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk of harm he would face if he returned to Pakistan was low [11-16]; state protection was available to him [17] and relocation was an option open to him [20].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 22 November 2017.

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

10.The Board was of the view that the applicant’s evidence was not sensible to believe and it did not accept his evidence [27]. It considered that the assault incidents did not amount to torture [29]; that state protection was available to him [33]; that his evidence failed to establish torture if he returned to Pakistan [42 & 43]; that he failed to establish his claim fell within BOR 3 risk [50]; that he failed to establish BOR 2 risk [59]; and that he failed to establish Persecution risk [71].

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.He relied upon the grounds below in support of his application.

1.The Board’s Decision was unreasonable and wrong and the Adjudicator did not give him sufficient time and chance to arrange relevant evidence for his case.

2.The Director did not give weight to state acquiescence.

3.The Director failed to consider his argument and give weight to his evidence.

4.The Director failed to attain high standards of fairness and was unfair.

DISCUSSION

13.The applicant appeared before me and he confirmed that he was free to express his views before the immigration officer and before the Board. His lawyer had explained the Director’s Decision to him and his friend had explained the Board’s Decision to him.

14.I put the Board’s findings to him and asked him if he had any comments on them. He said that he had no comments.

15.Of the grounds above, only ground (1) refers to the Board, the others refer to the Director, which are irrelevant. As to ground (1), it is only his opinion without any evidence in support of it. He did not identify what evidence he wished to adduce for his case. They fail.

16.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.”

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 29^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