Masih Shakeel v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2861/2018

[2020] HKCFI 1809

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2861 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 22 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Further Decision”) on BOR 2 risk, the first Decision having been made on Torture risk, BOR 3 risk and Persecution risk on 14 March 2016. See below.

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 replacing Immigration Department with the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) as proposed respondent and replacing Immigration Department 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 9 June 2009 illegally through China. He was arrested by police and was referred to the Immigration Department.  On 11 June 2009, he lodged his non-refoulement claim.

5.He claimed that if refouled, he would be harmed or killed by two members of a Muslim organization in Pakistan.

6.The reasons he had to leave Pakistan for Hong Kong are that he and his family are Christians. Between March 2009 and May 2009, he was accosted by two Muslim men, Muhammad Shafiq and Muhammad Shaukat, who told him to convert to Islam. He refused. On two different occasions, he was assaulted by Shafiq and Shaukat together with other unknown men with fists. He suffered injury of bruises and had to receive medication at hospital. He reported the matter to police, which did not render any assistance to him. Shafiq and Shaukat warned him that he had to convert to Islam or leave the place. He could not bear avoiding them from time to time. He therefore left Pakistan for Hong Kong.

The Director’s Decisions

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 16 January 2015 (“the Director’s Decision”), the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated. The Director found that the level of risk of harm from Shafiq and Shaukat (and their organization, if applicable) and other Muslims upon his return was assessed to be low [11]; that state protection would be available to him [18] and internal relocation was an option open to him [33].

9.By Notice of Further Decision dated 12 September 2017 (“the Director’s Further Decision”), the Director rejected his claim on BOR 2 risk as there was no evidence in support of this claim.

The Board’s Decisions

10.The applicant appealed to the Board against the Director’s Decisions. He attended two hearings before the Adjudicator on 22 September 2015 and 11 October 2018 respectively. 

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

12.In its first Decision, the Board considered the applicant’s evidence and the relevant Country of Origin Information and for the reasons set out in its Decision found that state protection was available to the applicant [112] and internal relocation was an option open to him [127]; that M would not face a genuine and substantial risk of being subjected to risk of torture or BOR 3 risk [132]; that he did not warrant non-refoulement protection on the ground of Persecution risk [139].

13.By the Board’s Further Decision, the Board refused his appeal because there was no evidence in support of his BOR 2 risk claim.

Application for leave to apply for judicial review

14.The applicant filed Form 86 on 13 December 2018 for leave to apply for judicial review of the Board’s Further Decision.

15.In his affirmation in support of his application, he had raised the grounds that his dangerous situation was disregarded.

DISCUSSION

16.The Board found that the applicant would not face a genuine and substantial risk of being subjected to all the risks.

17.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.”

18.The ground that he has raised in support of this application is his opinion without any evidence or specifics in support of it. The Board had given its reasons for its decisions.

19.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.

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

CONCLUSION

21.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

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