Iqbal Mazhar v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1344/2018

[2021] HKCFI 830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1344 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 21 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 illegally in mid-2014 and surrendered to the Immigration Department on 21 November 2014.  He raised his non-refoulement claim to the Immigration Department on 18 March 2015.

5.He claimed that if refouled, he would be harmed or killed by the husband of his elder sister, Hameed, because of a family dispute. The marriage between his elder sister and Hameed was pre-arranged. Shortly after their marriage, his elder sister was subjected to abuse and domestic violence by Hameed. She returned home to live. The dispute escalated to court proceedings. He heard from his friend that Hameed had threatened to kill him. Details of the incidents are set out in the Board’s Decision at paragraph 27 of the Board’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 25 November 2016 (“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 harm from Hameed upon his return to Pakistan was assessed to be low [33]; that state protection was available to him [36] and that internal relocation was an option open to him [37].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision.  He was legally represented at the hearing on 18 April 2018.

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

(1)   The Board had considered the applicant’s evidence and his counsel’s submissions on his behalf.  See paragraphs 44-80.

(2)   The Board did not accept that Hameed had ever threatened or attacked the applicant, either directly or indirectly. [82]

(3)   For the reason that his factual evidence was not accepted, the Board rejected the applicant’s claim on Torture risk [85], BOR 3 risk [86], BOR 2 risk [87] and Persecution risk [88].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 10 July 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 was not satisfied with the Board’s Decision.  He said that his enemies in Pakistan were powerful and the state could not provide him with protection.

DISCUSSION

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

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 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. The Board had given the reasons for its findings. See §9 above.

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 30^th 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