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

HCAL 1385/2018

[2021] HKCFI 821

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1385 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 15 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 from China on 13 May 2012.  He made a non-refoulement claim to the Immigration Department.

5.He claimed that if refouled, he would be harmed or killed by the Taliban in Pakistan. He claimed that he began to have problems while doing some construction work with people who turned out to be from the Pakistan Taliban.  They asked him to join them.  He refused and was threatened by them. He began hiding away from home.  He departed from Pakistan on 9 May 2012.  Since coming to Hong Kong. he was told that his brother was kidnapped by the Taliban.

The Director’s Decision

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

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

2.  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”);

3.  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

4.  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 26 January 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there were no substantial grounds for believing that there would be any real risk of him being harmed or killed by the Taliban if he returned to Pakistan [19]; that state protection was available to him [27] and internal relocation was an option open to him [35].

The Board’s Decision

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

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 Board attached no credence at all to the applicant’s claims to have had problems with the Taliban in the way he described. [15]

(2)   His evidence was vague and unsubstantiated and was inconsistent with the background knowledge about the Taliban as shown in the country of origin information. [15-27]

(3)   Internal relocation was an option open to him. [32]

(4)   For the reason that his factual evidence was not accepted, the Board rejected the applicant’s claim on Persecution risk [32], BOR 2 and BOR 3 risks [43] and Torture risk [47]

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 13 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 the Taliban are in much power in Pakistan beyond the military.  His family had tried to obtain assistance from the police but they failed.  Police refused to take action against the Taliban.  His brother had been kidnapped in 2012 and he is nowhere to be found.  His family cannot live freely there and they tried to hide themselves from the Taliban.  Their appearance looked like terrorists. They would be easily mistaken to be terrorists. If he returns, he would be killed by the Taliban terrorists.

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 grounds in support of this application repeat what he claimed at the Immigration Department and before the Board. The Director and the Board had made investigations into his case and they had come to their respective conclusions in their respective 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 31^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