Javed Umair v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2876/2018

[2020] HKCFI 1869

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2876 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 26 November 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 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 1 July 2015 and was arrested by police. He lodged his non-refoulement claim by a written representation dated 5 September 2015.

5.He claimed that if refouled, he would be harmed or killed by his enemies because of a land dispute and also his enemies had a close connection with the political party Pakistan Muslim League (Noon group) (“PMLN”). He left Pakistan on 25 June 2015. Between 2013 to June 2015, he was threatened and assaulted by his enemies on a number of occasions and he had to hide himself in various places of his friends. The details are set out in paragraphs 25-53 of the Board’s Decision.

The Director’s Decision

6.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”).

7.By Notice of Decision dated 26 March 2018 (“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 his enemies if he returned to his country was low [11]; that state protection would be available to him [15] and internal relocation was an option open to him [18].

The Board’s Decision

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

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

(1)  The Board did not accept the applicant’s evidence in support of his claim, i.e. that he was threatened or assaulted; that he had to move from place to place to avoid his enemies [121].

(2)  There was no risk that the applicant would be subjected to harm as he alleged if he returned to Pakistan [150].

(3)  State protection should be available to the applicant [152-156].

(4)  Internal relocation was option open to the applicant [194].

(5)  The applicant was not qualified for BOR 2 risk [207].

Application for leave to apply for judicial review

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

11.In his affirmation in support of his application, he stated that the Board had disregarded his dangerous situation.

DISCUSSION

12.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.

13.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.”

14.The Board had elaborated on the ways it had approached the assessment of the evidence before it before coming to its conclusions on the facts of the case.

15.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.

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

CONCLUSION

17.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