Abbas Adil v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2690/2018

[2021] HKCFI 1374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2690 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 (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 22 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 sneaked into Hong Kong illegally on 15 April 2013 and was arrested by police the same day.  On 17 April 2013, he lodged a non-refoulement claim with the Immigration Department.

5.He claimed that if refouled, he would be harmed or killed by a group of 10 Pakistan Peoples Party supporters (“PPP Group”) because he refused to leave Pahkistan Muslim League (N) – (“PML-N”) and join PPP.  He is a supporter of PML-(N) under the influence of his family.  He had been threatened by the PPP Group to join them.  One day in January 2013, he was attacked by people of PPP Group with wooden poles for 10-15 minutes on the street.  He was admitted to hospital for treatment.  It took about 6 months for recovery.  He took his friends’ advice to leave Pakistan for Hong Kong.  He first went to China from where he came to Hong Kong.  Details of the incidents are set out in paragraph 9 of the Director’s Decision described below.

The Director’s Decision

6.The applicant had previously applied for torture claim and withdrawn his application.  The Director therefore only considered his application in relation to the following risks:

a.  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”);

b.  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

c.  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 27 March 2018 (“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 or killed by the PPP Group if he returned to Pakistan was assessed to be low [14]; that state protection was available to him [18] and internal relocation was an option open to him [19].

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 18 July 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that the applicant was not a witness of truth, he was not a supporter of the PML(N) and he was not threatened by the supporters of PPP [63]; that his fractured fingers were not caused by the attack of the PPP supporters; that he left Pakistan not because of the reasons that he claimed [64] and that he would not be at risk of any harm if he returned to Pakistan [66].  In a nutshell, the applicant has no factual basis in support of his claim.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 27 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 would be killed if he went back to Pakistan.  Besides, he had married a Chinese woman in Hong Kong and he is applying for a dependent visa.  If he is repatriated, his wife’s life will be in danger.

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 do not assist his application.  He has no factual basis in support of his claim as both the Director and the Board had rejected his evidence on the facts.  As to his wife’s situation, the Director is not duty bound to take into account the various rights relied upon when exercising his discretion to refuse permission to stay to the applicant since such rights are disengaged by section 11 of the Ordinance.  See Comilang, Milagros Tecson & others v Director of Immigration [2019] HKCFA 10 §90.  Furthermore, this ground was never raised before the Board.  The Board has no duty to make investigation into it without the applicant raising it and it should not be considered by the Court at this stage.  See Nupur Mst v Director of Immigration [2018] HKCA 524 §14(5):

“(5) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.”

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 20^th day of May 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