Case Document

100%Judiciary

HCAL 2853/2018

[2020] HKCFI 1854

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2853 of 2018

BETWEEN

	Hussain Jawad	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 22 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant appeared before me at the hearing.

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 deleting the Director of Immigration (“the Director”) as proposed respondent and by adding the Director as interested party.

The applicant

4.The applicant is a Pakistani national. He came to Hong Kong on 27 August 2013 illegally from China. He was arrested by police on 10 September 2013. On the next day, he was referred to the Immigration Department for investigation. He lodged his non‑refoulement claim on 25 March 2014.

5.He claimed that if refouled, he would be killed by the supporters of Pakistan Peoples Party (“PPP”).

6.The applicant and his father were members of Pakistan Muslim League (N) (“PMLN”), the rival party to PPP. In 2013, they canvassed votes for PMLN for election. They were assaulted on the street by five people of PPP, using bare hands and machine guns’ butts. Their heads were bleeding and there were injuries all over their bodies. They had to received medical treatment. They complained to police. The police took no action. PPP won the election in 2013 and became the ruling party. His friend, who was also a PPP member, told him that PPP people decided to kill him. Therefore, it would be better if he left Pakistan. He moved to live with his maternal uncle. But the PPP people were still looking for him from time to time, threatening to kill him because he had reported the assaults to police. He also received threat calls from a PPP member called Shiraz. He took his friend’s advice and came to Hong Kong through China.

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 23 October 2015, 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 that he returned to Pakistan was low [14]; that state protection would be available to him [17] and that relocation was an option open to him [22].

9.By Notice of Further Decision dated 7 December 2016, the Director found that he was unable to establish BOR 2 risk.

The Board’s Decision

10.The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 14 November 2018.

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

12.The Board considered the applicant’s evidence and found that the applicant’s information was incredible and unreliable [33]; that the PPP people had lost interest in him [38]; that state protection was available to him [39] and that internal relocation was an option open to him [47]. He was also unable to establish BOR 2 risk [66].

Application for leave to apply for judicial review

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

14.In the attachment to Form 86 in support of his application, he submitted that the Board reached the wrong decision, which was unreasonable and unfair and the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence for his appeal.

DISCUSSION

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.The Board had evaluated his evidence and concluded that his evidence was unreliable. Therefore, he does not have factual basis in support of his claim. However, the Board went further to consider that state protection was available to him and that internal relocation was an option open to him.

17.His complaint that the Adjudicator was unfair and he did not give him sufficient time for his preparation for his appeal is only his opinion without any evidence in support of his complaint.

18.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.”

19.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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 to the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.

Dated the 5^th day of August 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 5/8/2020 Hussain Jawad 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 5/8/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 2488/15/10/I57/P681 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1233/15 (formerly RBCZ 1664/14) & RBCZ 9000843/16 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

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