Ramzan Irfan v. Torture Claims Appeal Board

Case No.HCAL 2453/2018[2020] HKCFI 2523

Court

High Court CFI

Date16 Oct 2020

Judge—

Case Document

100%Judiciary

HCAL 2453/2018

[2020] HKCFI 2523

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2453 of 2018

BETWEEN
	Ramzan Irfan	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Pakistan who entered Hong Kong illegally on 26 July 2008 and was arrested by police on 16 September 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by his uncle over a land dispute, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.

2.By a Notice of Decision dated 30 January 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all other applicable grounds except torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

3.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from him, that it was a private family dispute over land between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 205 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for his uncle to locate him.

4.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 16 October 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 1 November 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

5.On 5 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that his life would still be in danger in his home country without putting forward any proper ground for his intended challenge.

6.However, before his application could be dealt with by the court, the Applicant on 18 September 2020 filed an affirmation requesting to withdraw his leave application because all his “problems are finished” and that he now wants to return to his home country.

7.In the premises, and as the basis of his claim no longer exists, it would be appropriate for his application to be dismissed rather than withdrawn, and accordingly I accede to his request and dismiss his application.

Dated the 16^th day of October 2020.

(TAM Kam-man)
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 his 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 16^th October 2020 Ramzan Irfan 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 16^th October 2020 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 10336/18/2/220/P1999 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1