Zaman Khyber v. Torture Claims Appeal Board

HCAL 2528/2019

[2020] HKCFI 2559

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 2528 of 2019

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 33-year-old national of Pakistan who entered Hong Kong illegally on 23 August 2009 and was arrested by police on 25 August 2009. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by members of the Taliban for refusing to join them or to pay them extortion money.               

2.By a Notice of Decision dated 13 February 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 those Taliban members upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that after all these years that it is doubtful that they would still have any adverse interest in him, that in the absence of 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 196 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 those Taliban members to locate him.

4.On 24 February 2015 the Applicant 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 June 2016 before the Board during which he declined to give any further evidence or to answer any questions form the Board. On 28 March 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

5.On 11 April 2017 the Applicant filed his Form 86 in HCAL 134/2017 for leave to apply for judicial review of the Board’s decision, but his application was refused by Deputy High Court Judge Woodcock on 1 September 2017 upon finding none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no reasonable prospect of success in his intended application.

6.The Applicant did not bring any appeal against that decision, and instead on 13 September 2017 he filed another Form 86 under HCAL 619/2017 for leave to apply for judicial review again of the Board’s decision, and on 27 November 2017 his application was refused by Deputy High Court Judge Woodcock upon finding that the court had already dealt with the matter before and was therefore functus officio. 

7.Meanwhile on 30 March 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and in the absence of any response from the Applicant, the Director by a Notice of Further Decision dated 18 April 2017 again rejected his claim including BOR 2 risk.

8.On 25 April 2017 the Applicant lodged an appeal to the Board against the Director’s Further Decision, for which the Board did not find necessary to conduct any oral hearing, and proceeded to deal with the appeal in his absence and on paper. On 2 August 2019 his appeal was again dismissed by the Board upon finding no substance in his grounds of appeal. 

9.On 30 August 2019 the Applicant filed his Form 86 in these proceedings for leave to apply for judicial review of the Board’s second decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he is not satisfied with that decision but without putting forward any ground for his intended challenge.

10.However, before his application could be dealt with by the court, the Applicant on 22 September 2020 filed an affirmation requesting to withdraw his leave application because “all (his) problem now finish” and that he wants to go back to his home country in Pakistan as soon as possible.

11.In the premises, and as the basis of his claim no longer exists, it would be appropriate that his application be dismissed rather than withdrawn. Accordingly, I accede to the Applicant’s request and dismiss his application.

Dated the 16^th day of October 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