Shah Yasir v. Torture Claims Appeal Board / Non-refoulement Claims Etition Office

HCAL 1215/2018

[2021] HKCFI 485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1215 OF 2018

BETWEEN

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 the Applicant in open court.

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 23 March 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. He came to Hong Kong illegally on 28 November 2013. He was arrested by police and referred to the Immigration Department for investigation. He lodged a non-refoulement claim on 22 March 2014.

5.He claimed that if refouled, he would be harmed or killed by Uzair Ali’s family and their men because his car collided with the motor cycle driven by their son (“Ali”), who subsequently died. Ali’s family have close connection with Pakistan Muslim League Noon (“PMLN”). The incident happened in August 2013, Ali’s motorcycle was driving on the opposite lane. It was driving fast and it ran into his vehicle. He was scared and he drove away from the scene back home. He did not report this incident to police. He learned that Ali died after the incident. Ali’s family demanded 1.5 million Pakistani rupees as compensation. He was unable to pay. Ali’s family threatened to cause big trouble to him. He was twice assaulted by some people of Ali’s family. He sustained mild injuries. Then he came to Hong Kong. The details are contained in paragraph 6 of the Director’s Decision.

The Director’s Decision

6.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”);

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 27 March 2017 (“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 risk of being harmed or killed by Ali’s family and their men upon his return was assessed to be 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 affirmed the Director’s Decision for the reasons as set out below.

(1)   The applicant had given inconsistent evidence with discrepancies. [33-34]

(2)   His allegations were not supported by objective evidence. [57]

(3)   For reasons given the Board found that he was not a reliable witness and that no reliance could be placed on his evidence. He was given a chance to respond and supplement the flaws and inconsistencies identified at the hearing, but he chose not to give and [any] answer. [62]

(4)   There was no or no reliable evidence that the two alleged assaults on the him having taken place. [63]

(5)   For the reasons, his claim based upon Persecution risk [107], BOR 3 risk [108], BOR 2 risk [109] and Torture risk [110] failed.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 28 June 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmations in support of his application, he said:

“…there are many irrelevant facts made by torture claim appeal board, 15 June 2018. Officer erred in assessing the level of risk of harm to be low. Officer prefer unlikely fairly access the danger of my life and clearly calculate to reject my claim …”

DISCUSSION

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

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.His grounds in support of this application are without any evidence or specific in support of them. They do not assist his application.

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 1^st day of March 2021

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