Muhammad Asghar Shaikh v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2872/2018

[2020] HKCFI 1868

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2872 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 18 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Further Decision”). This Decision deals with BOR 2 risk only. The Board had made another Decision dated 2 March 2017 on BOR 3 risk and Persecution risk[1] (“the Board’s First Decision”). The Court will consider both Decisions as the facts in the Board’s First Decision are the same facts in the Board’s Further 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 to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a Pakistani national. He came to Hong Kong illegally on 24 October 2006 and was arrested. He lodged his non-refoulement claim on 5 July 2007.

5.He claimed that if refouled, he would be harmed or killed by the members of the Pakistan People’s Party (“PPP”). The incidents arose out of a cricket match between two teams where one of the players, who was a member of PPP was injured by him and he died subsequently. See paragraph 3 of the Board’s First Decision.

The Director’s Decisions

6.The applicant had made a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and his application was rejected. He had appealed to the Chief Executive and his appeal was also rejected. Therefore, the Director considered his application in relation to the following risks:

a.  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

b.  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 31 August 2015 (“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 harm by PPP members if he returned to his country was low [27]; that considering the pros and cons of state protection in the country of origin information, state protection would be available to him [45] and internal relocation was an option open to him [46].

8.By Notice of Further Decision dated 17 May 2017 (“the Director’s Further Decision”), the Director rejected his BOR 2 risk claim.

The Board’s Decisions

9.The applicant appealed to the Board against the Director’s Decision. He attended the hearing before the Board.

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

(1)  Internal relocation was available to him [8 & 15].

(2)  The Board did not believe that the PPP member were still interested in him after a long lapse of 11 years [10].

(3)  The applicant did not suffer severe injury or serious harm, therefore there was no ground to believe that he would face a future risk of serious harm and state protection would be available to him [14].

(4)  His evidence was not credible because he did not lodge the claim immediately after he had arrived in Hong Kong and that he had committed an offence by entering Hong Kong illegally and he did not volunteer answers to its questions [21-23].

11.The Board did not hold a hearing for his appeal on BOR2 risk because it based upon the same facts in the Board’s First Decision. In the Board’s Further Decision, the Board found that there was no evidence to establish BOR 2 risk. It rejected his appeal against the Director’s Further Decision on BOR 2 risk claim.

Application for leave to apply for judicial review

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

13.In his affirmation in support of his application, he stated that his life was still in danger.

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 ground advanced by the applicant.

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

17.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

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

Dated the 6^th day of August 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

[1]  See paragraph 6 below