Akbar Zahid v. Torture Claims Appeal Board / Non-refoulement Claims Petition

HCAL 1462/2018

[2021] HKCFI 1031

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1462 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 20 July 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 on 5 March 2016 and was arrested by police on the same day.  He lodged his non-refoulement claim with the Immigration Department on 7 March 2016.

5.He claimed that if refouled, his life would be endangered by his cousins due to a land dispute. His grandfather had two sons, the applicant’s father and his uncle and owned a piece of land and he passed away.  His uncle claimed to have full possession of the land, saying that he had bought the land.  The applicant and his father disagreed.  His uncle has three sons.  They worked on the piece of land for agriculture.  He had had two occasions where he fought with his cousins, one in 2015 and the other in 2016.  On the first occasion, they fought with bare hands.  On the second occasion, his cousins used machine guns and shot at him and his friend.  He and his friend managed to escape.  He decided to leave Pakistan for safety and came to Hong Kong through the travel agent.  Details of the incidents are set out in paragraph 6 of the Director’s Decision described below.

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 29 May 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no ground for believing that he would be subjected to any real risk of being harmed or killed if he returned to Pakistan [11]; that state protection was available to him [13] and internal relocation was an option open to him [14].

The Board’s Decision

8.The applicant appealed against the Director’s Decision. He attended the hearing before the Board on 20 March 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision because the applicant had given inconsistent evidence in relation to the basic facts of his case.  The inconsistencies are so serious and fundamental that the Board rejected his factual evidence that there was a land dispute; that his cousins had threatened him or fought with him; that they shot at him and his friend with machine gun.  The Board found that the applicant was not a credible witness.  The applicant therefore has no factual basis in support of his claim.  The Board considered that it was not necessary to consider relocation.  See paragraphs 29-34 of the Board’s Decision.  Because of those reasons, the Board rejected his claim on all risks in paragraph 6 above.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 25 July 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said that he wanted to review the Board’s Decision because the Board disregarded his dangerous situation.

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 does 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 22^nd day of April 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