Case Document

100%Judiciary

HCAL 786/2019

[2021] HKCFI 3156

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 786 of 2019

BETWEEN

	Zulfiqar Ali	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 18 February 2019 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”), his application will be dealt with 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 entered Hong Kong on 14 March 2002 as a visitor but overstayed since 29 March 2002. On 28 December 2006, he was arrested for overstaying and theft (later withdrawn). Thereafter, he was sentenced to prison for three months and eventually transferred to the Immigration Department on 24 February 2007.

5.On 26 February 2007, the applicant lodged a torture claim under Article 3 of Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”). His torture claim was later withdrawn and closed. On 16 July 2013, the applicant was again arrested and transferred to the Immigration Department. On 18 July 2013, by way of a written signification, he lodged a CIDTP claim. On 1 February 2018, the applicant through the duty lawyer service sought to re-open his torture claim. As a result, his CIDTP claim and torture claim were to be assessed as part of his non-refoulement claim.

6.The applicant claimed that if refouled, he would be harmed or killed by the members of Pakistan Peoples Party (“PPP”) because of his position in the Pakistan Muslim League (N) (“PMLN”) and his refusal to join the PPP. From October 2001 to 10 January 2002, the applicant claimed to have received verbal threats and on two occasions, he was shot with machine guns by members of the PPP. Some of his friends were shot and killed. Details of his story are set out in paragraph 11 of the Director’s Decision and paragraph 9 of the Board’s Decision as described below.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 26 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 him being harmed or killed by members of PPP was assessed to be low [24]-[29]; that state protection was available to him [30] and that internal relocation was an option open to him [31].

The Board’s Decision

9.The applicant appealed against the Director’s Decision. He had appeared before the Board and was assisted by an interpreter.

10.By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal. While the Board accepted that he was involved with the PML(N) [64], it did not accept his evidence as to the level of his involvement in the PML(N) and the deaths of colleagues because there was no corroborative evidence. Further, the Board found that, based on the available country of origin information, the change of political situation in Pakistan made the applicant’s assertion that he would still be chased by the members of PPP far-fetched [65]-[74]. There was no evidence to show that the state was involved in the incidents [75]. In any event, state protection and internal relocation were both available to the applicant. Relocation to places like Quetta was recommended and not too harsh for the applicant [80]-[91]. The Board therefore concluded that the applicant’s claim failed on Torture risk [92 & 93], BOR 2 and BOR3 risks [94 & 95] and Persecution risk [96-98]. Thus, the applicant failed to establish that there were substantial grounds for believing that he would be subjected to torture or other risks if he returned to Pakistan.

Application for leave to apply for judicial review

11.The applicant filed Form 86 dated 21 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he said that he was not satisfied with the Director’s Decision and the Board’s Decision, without specifying any grounds in support of his application.

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.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.”

16.He has submitted no valid ground to challenge the Board’s Decision.

17.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.

18.There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.

CONCLUSION

19.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 October 2021

	(M.O. WONG)(Ms)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 28 October 2021 Zulfiqar Ali Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28 October 2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11108/18/4/118/P2152 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 381/18 (formerly RBCZ 2000787/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)