Khan Razaq v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2730/2018

[2021] HKCFI 1661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2730 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 27 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.  On 27 June 2012, he was arrested by police for illegal remaining in Hong Kong.  He was handed over to the Immigration Department.  On 30 June 2012, he raised his non-refoulement claim with the Immigration Department.

5.He claimed that if refouled, he would be harmed or killed by Haji and his people.  He had borrowed money from Haji, but failed to repay his debt.  Haji and his people came to his parents’ home where there was a gunfight between Haji and his family members.  His parental aunt was shot and killed.  His parent uncle was shot and his arm had to be amputated.  Consequently, Haji lost his hand and he had to reach a compromise with the applicant’s family in court, which was against his wish.  He therefore hated the applicant and made death threats to him.  The sagas lasted from 1996 to 2012.  In June 2012, he left Pakistan for Hong Kong.  Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decisions

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 13 March 2015 (“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 that he might be harmed or killed if he returned to Pakistan was assessed to be low [11]; that state protection was available to him [16] and internal relocation was an option open to him [23].  By Notice of Further Decision dated 31 May 2017, the Director refused his claim on BOR 2 risk because he failed to establish his right would be violated under BOR 2 risk if he returned to Pakistan. [6]

The Board’s Decision

8.The applicant appealed against the Director’s Decisions.  He attended the hearing before the Board on 9 August 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decisions for the reasons that the Board had tested his evidence by pointing out to him the inconsistencies in his evidence [53]; that his claims for seeking non-refoulement protection from return to Pakistan had been consistent on general terms [64]; that there were aspects of evidence that were inconsistent [68-79]; that there were doubts about his truthfulness of his accounts of the events that led to his departure from Pakistan and his unwillingness to return there, which culminated to its conclusion that he had fabricated his claims in order to support his application for non-refoulement protection [80-81].  In a nutshell, the Board rejected his facts in support of his claim.  He has no factual basis in support of his claim.  On that basis, his claim on Torture risk, BOR 2 risk, BOR 3 risk and Persecution risk failed [96-99].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 3 December 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 30^th day of June 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