Nawaz Muhammad Rashid v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1893/2018

[2020] HKCFI 1761

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1893 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 13 July 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, I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by adding the Board as respondent and by replacing the Board with the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a Pakistani national. He came to Hong Kong on 28 July 2014 illegally and surrendered to the Immigration Department on 13 April 2015. On 16 November 2015, he lodged his non-refoulement claim.

5.He claimed that if refouled, he would be harmed or killed by his three cousins in Pakistan because of his refusal of marrying their sister.

6.Endogamous marriage is being practiced in Pakistan. The applicant’s sister married the son of his mother’s sister. His maternal aunt expected him to marry her daughter, Bushara in return. However, there was an agreement between his mother and his aunt that it was not obligatory for him to do so. Therefore, he refused to marry Bushara. His sister was evicted from the family because he refused to make the reciprocal marriage. His aunt had three sons. In 2013, he was attacked by his three cousins and was injured. He had received stitches on his forehead. They asked him to marry their sister, Bushara. He refused. But he did not report the matter to police. He took his father’s advice to move to live in Karachi. He lived with his brother. He received telephone calls from his cousins with threats. However, his eldest cousin sent his brother-in-law to look for him in Karachi. He moved back to his home. Finally, he decided to leave Pakistan for Hong Kong. He was in contact with his family in Pakistan and learned that his cousins were still looking for him in Pakistan.

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 22 November 2016 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk that he returned to Pakistan was low [14]; that state protection would be available to him [16.3] and that relocation was an option open to him [18]. He was unable to establish by evidence that he would be subjected to BOR 2 risk if he returned to Pakistan.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 18 January 2018.

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

11.The Board considered the applicant’s evidence. It accepted part of his evidence and found:

a.Bushara’s family had decided he should marry the daughter was plausible and credible.

b.It did not accept that his cousins were still pursuing his for his refusal to marry Bashara.

c.It did not accept that the applicant was responsible for Ayab’s death.

d.It accepted that he might be assaulted by his cousin in 2013.

e.His failure to apply for non-refoulement in the 7 months in China seriously undermined his credibility of his claim to fear serious harm if he returns to Pakistan.

f.  The Board did not accept that he would face a real risk of harm now or in the reasonably foreseeable future in Pakistan, even if he refuses to marry Bushara and therefore his fear of any risk was far-fetched and fanciful. [78-94]

g.Relocation was an option open to him [95].

h.State protection would be available to him as well [101]

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 10 September 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 Pakistan had not been fixed although his family was trying to fix them.

DISCUSSION

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant. See para. 11. The Court does not find any error of law or procedural unfairness in it. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

15.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.

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

CONCLUSION

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

Dated the 31^st 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