Case Document

100%Judiciary

HCAL 1737/2018

[2020] HKCFI 1756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1737 of 2018

BETWEEN

	Ahmad Ijaz	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and oral submission by the Applicant in open court;

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 3 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended by adding the Board as proposed respondent and the Director of Immigration (the “Director”) as interested party.

The applicant

4.The applicant is a Pakistani national. He came to Hong Kong on 26 May 2007 illegally through Shenzhen. He was arrested by police on the same day and was referred to the Immigration Department. He lodged a torture claim but was rejected. He filed a petition, which was rejected. He was removed. On 17 June 2013, he sneaked into Hong Kong illegally from Shenzhen again. He was arrested by police and referred to the Immigration Department. He lodged a non-refoulement claim by way of a written representation dated 19 June 2013 and by undated letter received by the Immigration Department on 26 June 2013.

5.He claimed that if refouled, he would be harmed or killed by the Pakistan Muslim League (“PML(N)”) people.

6.The applicant and his family members were supporters of PML(N), a rival party to Pakistan People’s Party (“PPP”). His father had bought a piece of land in 2007. He and his father went there to build a fence for the piece of land. Mr. B, the owner of the adjoining land intervened and claimed that he owed that piece of land as well. Mr. B said that if they claimed possession of the land, he would kill them. Mr. B is a notorious gangster connected with PPP and the local police. He reported the threat to police. Police warned him that if he pursued the matter, he would be killed. In March 2007, he went to build the fence again together with 8 workers. Mr. B came with 10 people armed with rifles to the scene and claimed the land. He left without any injury. He moved to live in his father’s friend’s house for one and a half month. His father and his younger brother went to build a fence on the same piece of land. His younger brother was shot on the leg by Mr. B and his people. He then came to Hong Kong for fear that he might be killed.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 15 August 2017 (“the Director’s Decision”), the Director refused his claim on all risks for the reason that his claim was not substantiated. The Director found that the level of risk of harm upon his return was assessed to be low [35]; that state protection would be available to him [49] and internal relocation was an option open to him [50].

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 7 May 2018. The Adjudicator had raised a lot of questions for him. See §§40-52.

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

11.In its Decision, the Board considered the applicant’s evidence and for the reasons set out in paragraphs 40-52, it found multiple, material inconsistencies and implausibilities in his evidence, as well as his non-persuasive explanations. It concluded that he was not a credible witness. The Board rejected all his evidence of facts in support of his claim. It considered that the applicant had fabricated the case so as to create a basis for his non-refoulement claim. See §53.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 24 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he said that his problems in his country had not been solved and it would be dangerous for him to return.

DISCUSSION

14.It is obvious that the Board had rejected all the facts in support of his application. As such, he has no factual basis for his claim.

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

“ 13.… …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 grounds that he has raised in support of this application are inconsistent with the Board’s finding.

17.There is no evidence to show that the Board erred in the finding of the facts or the application of the laws to his case.

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

CONCLUSION

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

Dated the 31^st day of July 2020

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 31/7/2020 Ahmad Ijaz Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 31/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8289/17/8/327/P1629 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 728/16 (formerly RBCZ 303/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

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