Ali Atif v. Torture Claims Appeal Board and Another

Case No.HCAL 1293/2020[2020] HKCFI 2557

Court

High Court CFI

Date26 Nov 2020

Judge—

Case Document

100%Judiciary

HCAL 1293/2020

[2020] HKCFI 2557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1293 of 2020

BETWEEN
	Ali Atif	Applicant
	and
	Torture Claims Appeal Board	1^st Putative Respondent
	Director of Immigration	2^nd 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 43-year-old national of Pakistan who entered Hong Kong illegally on 11 September 2014 and was arrested by police on the same day. 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 his uncle over a land dispute in his home district.

2.By a Notice of Decision dated 15 January 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), 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 found no substantial grounds for believing that his claimed risk of harm from his uncle upon his return to Pakistan is real and foreseeable due to the low intensity and frequency of past ill-treatment from him, that the land in dispute was in fact his family ancestral property already possessed by his uncle and hence there was no reason for him to cause any harm to the Applicant, that in any event it was a private family dispute 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 201 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 Islamabad where it would be difficult if not impossible for his uncle to locate him.

4.On 26 January 2018 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 25 September 2019 with legal representation from the Duty Lawyer Service before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 11 June 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

5.On 24 June 2020 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but before his application could be dealt with by the court, he on 14 September 2020 filed an affirmation requesting to withdraw his application because his problem in his country is solved.

6.In the premises, and as the basis of the Applicant’s 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 26^th day of November 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 26^th November 2020 Ali Atif 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 26^th November 2020 Torture Claims Appeal Board 1^st Putative Respondent’s ref. no.: USM 10051/18/1/324/P1940 Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 3155/17 (Formerly RBCZ/3001786/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1