Case Document

100%Judiciary

HCAL 1257/2018

[2021] HKCFI 477

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1257 of 2018

BETWEEN

	Khadim Umair	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

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

Following;

consideration of documents only; or

consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 22 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

1.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.

2.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

3.The applicant is a Pakistani national. He was arrested for entering illegally Hong Kong on 9 March 2016. He lodged his non-refoulement claim with the Immigration Department.

4.He claimed that if refouled, he would be harmed or killed by Ansari family because his father had grudges with them. His father had left the family and is now in Europe as according to his mother. He had no idea why the Ansari family wanted to kill his father. His mother was unable to give him the answer. In 2009, his uncle was suspected to have been killed by the Ansari family. But there was no concrete evidence to prove it. In the same year, his brother was kidnapped and killed. The Ansari family is suspected to have committed the crimes. Then, the family received threatening calls from the Ansari family. He had to move to a friend’s house in Manawar for about 6 months. The incidents were complained to police but they were not make investigations into the cases. His family relocated to Islamabad in November or December 2015. He relocated to Sialkot in November or December 2015. He learned from his mother that the Ansari family had made death threats to the family. He decided to leave Pakistan for Macau, from where he went to Guangzhou and finally sneaked into Hong Kong. The details of the incidents can be found in paragraph 8 of the Director’s Decision described below.

The Director’s Decision

5.The Director considered his application in relation to the following risks:

a. risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

a. 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”);

b. 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

c. 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”).

6.By Notice of Decision dated 23 February 2017 (“the Director’s Decision”), the Director refused his claim for the reason that there were no substantial grounds to believe that he would be ill-treated or harmed or killed by the Ansari family upon his return to Pakistan [13]; that state protection would be available to him [20] and internal relocation was an option open to him [21].

The Board’s Decision

7.The applicant appealed to the Board against the Director’s Decision. He attended the hearing before the Board on 16 April 2018.

8.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.

a. The applicant gave different story to the Board to the one he gave to the Director and he was unable to give any explanation for such inconsistencies. [16-18]

b. The Board did not accept the applicant’s evidence on the facts of his case. [21]

c. The Board found that state protection would be available to him if he returned to Pakistan. [24]

d. The Board also found that, if it were wrong on the facts of the case, the applicant could relocate himself. [25-29]

e. For the reasons above, the Board rejected his Persecution risk [31-32], BOR2 & 3 risks [40] and Torture risk [44].

Application for leave to apply for judicial review

9.The applicant filed Form 86 on 3 July 2018 for leave to apply for judicial review of the Board’s Decision.

10.In his affirmations in support of his application, he said that the Board’s Decision was unfair and erroneous.

DISCUSSION

11.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 9 above.

12.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.”

13.His ground in support of this application is only his opinion without any evidence or specific in support of it. It does not assist his application.

14.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.

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

CONCLUSION

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

Dated the 1^st day of March 2021

	(M. O. WONG)(Ms)
	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 the Applicant’s 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 1 March 2021 Khadim Umair 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 1 March 2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 6435/17/3/90/P1374 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1617/16 (Formerly RBCZ 11196/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)