HKCFI 867
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 633 of 2018
|Torture Claims Appeal Board
|Director of Immigration
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
||consideration of the documents only; or
||consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review granted.
Observations for the Applicant:
1. The Applicant is a 28-year-old national of Pakistan who entered Hong Kong illegally on 15 January 2014 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non‑refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by some local gangsters for refusing to join their illegal activities including trafficking guns and firearms. He was subsequently released on recognizance pending the determination of his claim.
2. The Applicant was born in Sargodha District, Punjab, Pakistan and moved with his family to Gujrat when he was young and where he received his education. After leaving school he worked as a mechanic and then a loading worker.
3. In 2002 he through work became acquainted with a man called Ali who hired him to drive him and his men to deliver some goods, during which they were stopped by the police who discovered that the goods were firearms, and as a result they were all arrested and detained for interrogation, but were later released after Ali had paid bribes to the police.
4. After their release Ali approached the Applicant and invited him to join his gang, but when the Applicant refused as he did not want to be involved in their illegal activities, he was beaten up badly by Ali and his men. Thereafter Ali and his men continued to harass and threaten the Applicant to join their gang, and every time when he refused, they would beat him up badly.
5. Unable to put up with such beatings any further, the Applicant later fled to Karachi, but when he heard that Ali and his men were looking for him everywhere, he decided that it was no longer safe to remain in Pakistan, and so in October 2013 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non‑refoulement claim for protection, for which he completed a Non‑refoulement Claim Form (“NCF”) on 11 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
6. By a Notice of Decision dated 9 February 2017 the Director of Immigration (“The Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Tortur Claim”), risk of his absolute or non‑derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).
7. In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by Ali and his men upon his return to Pakistan in the absence of any official involvement in those illegal activities of Ali that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 202 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able‑bodied young man with working experience to move to other part of Pakistan away from his home district in large cities such as Lahore where it would be difficult if not impossible for Ali and his men to locate him.
8. On 15 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“The Board”) against the Director’s decision, but by then he was out of time with his Notice of Appeal, as section 37ZS of the Ordinance...