Ali Raza v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2636/2018

[2021] HKCFI 1091

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2636 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;  or
	consideration of documents and Applicant being absent 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 November 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 25 December 2015 and was arrested by police on 27 December 2015. He lodged his non-refoulement claim with the Immigration Department.

5.He claimed that if refouled, he would be harmed or killed by his friend’s family, who were associated with Pakistan Muslim Leagues (Nawaz) as they accused him for the killing of his friend, Khawar Butt (“Khawar”). On 13 March 2013, whilst he and his cousin were at home, their friends came and told them that Khawar had been shot dead. The applicant had no idea who did that. The next day, he and his cousin were taken to police station by police officers. They were detained in separate rooms. He was assaulted by the police officers who asked him to confess that he had killed Khawar and he refused. He was hanged upside down and beaten by police officers. He was released by police after a few days’ interrogation. Khawar’s maternal uncle, Khalid came to him and accused him of killing Khawar. Khalid threatened him. He tried to move and live in other places in order to avoid Khalid. He had gone to Dubai where he stayed for about one month. He then returned to his home where he came across Khalid again. In March or April 2014, he was riding a motorcycle and saw Khalid, who shot him with a pistol. He managed to escape. He moved to live in another place. However, he saw Khalid again. But Khalid did not see him. He felt he was unsafe. He obtained a friend’s help by fleeing to China from where he came to Hong Kong. Details of the incidents are set out in §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 26 October 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 of killed if he returned to Pakistan was assessed to be low [10]; that state protection was available to him [14] and internal relocation was an option open to him [17].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He attended the hearing before the Board on 3 October 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)  There are numerous matters in his claim form and interview which lack sufficient detail and require explanation. [44]

(2)  There are material inconsistencies and omissions between the applicant’s claim form and his interview which require explanation. [45]

(3)  The applicant had refused to co-operate with the Board notwithstanding the Board had told him at the outset of the hearing that he had the obligation to provide the Board with credible evidence. His conduct undermines his credibility. [47]

(4)  For the reasons above, the Board attached no credence to any of the statements or claims that the applicant made to the Immigration Department and it concluded that he is not a witness of truth. [48]

(5)  The Board finds that he has not established any of the facts he has asserted. [49]

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 22 November 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 still has danger in his country.

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 28^th 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

Form CALL-1