Khan Rai Usman Farooq v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2801/2018

[2021] HKCFI 2347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2801 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 30 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 citizen of Pakistan.  He came to Hong Kong illegally by boat in November 2016.  On 3 March 2016, he surrendered to the Immigration Department.  He lodged non-refoulement claim with the Immigration Department on 26 September 2016.

5.He claimed that if refouled, he would be harmed or killed by the supporters of the PML(N), the ruling party, because he was a supporter of its rival party Pakistan

Tahrek-e-Insaf (“PTI”).  In the General Election in 2013, the PTI lost because of rigging by PML(N).  He took part in organizing protests against the ruling party.  Their supporters, including himself, were assaulted by police.  The police had also framed up murder cases of police officers against them and he was one of those on the wanted list.  Therefore, he must leave Pakistan.  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 27 July 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 him being harmed or killed if he returned to Pakistan was assessed to be low [11]; that his allegation of state protection being not available to him was not accepted [16] and that internal relocation was an option open to him [17].

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 3 April 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that other than that he was a supporter of PTI and he was involved in the activities, the Board rejected his evidence that he was attacked by the rival parties’ supporters or police frame-up of murder charge against him [47] and that he left Pakistan because he was the target of the PML(N) people [55].  Also, relocation was an option open to him [48] and that state protection was available to him [49].  He had failed to prove by evidence any of the risks he claimed [65].

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant filed Form 86 on 7 December 2018 to apply for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he had submitted a 46-page submission containing repetitive and discursive references to the law, the cases and substances, many of which are irrelevant to this application.  I shall summarize them as follows:

(1)     Error of law: failing to consider extended acquiescence of the state and failing to consider the country of origin information (“COI”) report in assessing the risks to him;

(2)     Procedural impropriety: the adjudicator is a different person than the immigration officer; failing to investigate the COI; failing to consider relevant materials and selectively placing weight to irrelevant materials; failing to consider consistent system of human right violations; failing to consider if state protection is available to him; failing to call psychological or psychiatric report; applying incorrect standard of proof and no consideration of internal relocation;

(3)     Irrationality: No reasonable basis to reject his credibility.

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 are massive and discursive, many of them being irrelevant to his case.  They are only his opinions without any evidence or specifics in support of them.  The Board had clearly given its reasons in support of its findings.  Those grounds are rejected.

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 prospect 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 17^th day of August 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