Aamir Sohail v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1225/2018

[2021] HKCFI 482

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1225 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 12 June 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 national.  He came to Hong Kong through China on 6 January 2009 illegally by boat. He was arrested by police on 9 August 2009.  He lodged his torture claim protection with the Immigration Department on 11 August 2009.  His application was processed under the Unified Screening Mechanism as a non-refoulement claim application.

5.He claimed that if refouled, he would be harmed or killed by the Imam and Humayun Gujur (“Humayun”) because he had grudges with them. From 2003 to 2009, he, his brother Babar, his sister and his parents were troubled by the Imam and Humayun.  They assaulted Babar and him with hands and weapons.  They went to their house, threw stones at the house and smashed the windows.  They got other people to attack him and his family with weapons.  They shot with guns at the sky to frighten them.  His brother was forced to leave the family. He was also forced to leave home.  The family was forced to sell their home.  There were altogether 13 incidents during this period of six years.  Finally, he was forced to leave Pakistan for China, where he came to Hong Kong.  There had been attempts to report the incidents to police.  But the police did not render any assistance because the Imam and Humayun were powerful and influential and the Pakistani police was corrupt.  It is impossible to relocate himself because Imam and Humayun are powerful in Pakistan and they will find him.  The details of the incidents 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 18 February 2015 (“the Director’s Decision”), the Director refused his claim on a, c, and d. for the reason that his claim was not substantiated. The Director found that the level of risk of harm from the Imam and Humayun upon his return was assessed to be low [15]; that he would not be subjected to a genuine and substantial risk of ill-treatment under BOR 3 risk [31]; that his case did not warrant non-refoulement protection on the ground of Persecution risk [36] and that there was no substantial ground to accept that he would be subjected to torture within the context of Torture risk [38&39]. By the Director’s Further Decision dated 31 May 2017, the Director found that he failed to establish that he would be subjected to a real, foreseeable and personal risk under BOR 2 if he returned to Pakistan [7].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decisions.  He had attended the hearing before the Board on 27 July, 2017, 13 September 2017 and 19 December 2017 respectively.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decisions for the reasons below.

(1)   The level of risk of harm from the Imam and Humayun upon his return was assessed to be low. [62-74]

(2)   Having considered the Director’s Decision, the Board also found that there was no evidence that state protection was not available to him if he returned to Pakistan. [77-82]

(3)   For those reasons above, his claim based upon the risks in paragraph 6 above was rejected. [75 & 83]

(4)   The Board did not accept the evidence of the applicant in support of his perceived fear. [84]

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 that he did not want to go back to his own country because the Muslim thugs in Pakistan would do harm to him because of his Christian religion and that he did not want to be separated from his child, who was born in Hong Kong.

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 … … 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 do not assist his application.  He has not pointed out what error the Board had committed in reaching its decisions.

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