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

HCAL 162/2021

[2021] HKCFI 1712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 162 of 2021

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 5 February 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  He is now being detained by the Immigration Department.

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 citizen of Afghanistan.  He came to Hong Kong illegally through Shenzhen on 25 December 2019.  He was arrested on 22 May 2020. He lodged a non-refoulement claim with the Immigration Department by way of signification dated 24 May 2020.

5.He claimed that if refouled, he would be harmed or killed by the Taliban members because he was a soldier of the Afghan military.  He joined the military about two years before he left Afghanistan.  The Taliban people were looking for him.  They went to his father to look for him.  His father advised him not to return home or he would be in danger.  His sister was kidnapped by the Taliban people and was murdered.  He had to quit the military and lived in his friend’s place.  He left Afghanistan for China on his friend’s advice.  Details of his story are set out in paragraph 7 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 21 October 2020 (“the Director’s Decision”), the Director refused his claim for the reasons that his assertion of being targeted by the Taliban for simply being a soldier was unsupported, speculative and far-fetched [13.7]; that state protection was available to him [14] and that internal relocation was an option open to him [15].

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  He appeared before the Board on 30 December 2020.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision.  The Board found that all the core assertions to the non-refoulement claim were fabricated or were wholly unreliable, in particular, his claimed profile as someone who had served in the Afghan Army [139]; that there was no evidence to show that the state of Afghanistan was involved and that he had suffered physical and/or mental suffering of the requisite severity and that there was no evidence to show that the Afghan government was unwilling or unable to afford protection to him. [141-144] He was also unable to show, by evidence, that there was a real chance that the claimed fear would materialize. [146]

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 17 February 2021 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said that the Board’s Decision was wrong and that his right under BOR 2 must be protected.

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. The Board has found that he has no factual basis in support of his claim.

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 7^th day of July 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