Haider Zeeshan v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office and Another

HCAL806/2018

[2018] HKCFI 2647

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 806 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.The applicant applies for leave for judicial review of the Decision of

(a)   The Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”); and

(b)   The Director of immigration (“the Director”).

The applicant

2.The applicant is a Pakistani, who entered Hong Kong in 12 October 2012 lawfully to participate in an exhibition for the period 11-13 September 2012. He overstayed without permission from the Direction. He was arrested by police and handed over to the Immigration Department for investigation.

3.On 8 May 2014, he submitted his application to the Director for non-refoulement protection.[1]

The grounds in support of non-refoulement protection

4.The applicant claimed that if he were refouled to Pakistan, he would either be harmed or killed by his maternal uncle, and/or people working for Pakistan Muslim League (Nawaz) because of a land dispute where his maternal uncle wanted to purchase a piece of land belonging to the applicant’s father at an underprice. His father refused to accept. The uncle considered that the applicant had advised his father to have made the decision.

The Director’s Decision and Further Decision

5.The Director considered his application under the following grounds:

(a)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”);

(b)   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(c)   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 under RC”)

6.By Notice of Decision dated 22 August 2016 (“the Director’s Decision”), the Director notified the applicant that he rejected the applicant’s application. The Direction had set out the reasons in his decision.

7.By another letter dated 10 July 2017, the Director invited the applicant to submit additional facts relevant to his application in relation to 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”). The applicant did not respond to this letter. The Director proceeded to consider his application in relation to BOR 2 risk and having considered the facts, by Notice of Further Decision dated 2 August 2017 (“the Director’s Further Decision”), he refused the applicant’s application on this additional ground.

Appeal to the Board

8.By Notice of Appeal/Petition dated 2 September 2016, the applicant appealed against the Director’s decision. The Director’s Further Decision was also sent to the Board for consideration together with the Director’s Decision. A hearing was conducted by the Adjudicator on 22 February 2018. The Board had, therefore, considered the applicant’s appeal on the Director’s Decision and the Director’s Further Decision. By Decision dated 13 April 2018, the Board refused the applicant’s appeal and confirmed the Director’s Decision and Further Decision.

Application for leave for judicial review

9.By Form No. 86 under Order 53, rule 3(2) of the Rules of the High Court dated 8 May 2018, the applicant applied for leave for judicial review of the Decisions of the Director and the Decision of the Adjudicator, relying upon the following grounds:

(a)   he did not receive the Director’s Further Decision and he did not understand English and there was no translation;

(b)   he did not understand the Board’s Decision as there was no translation too;

(c)   since he did not understand the language of the Director’s Decisions and the Board’s Decision, there has been procedural irregularity (“the procedural irregularity ground”);

(d)   the Director had quoted various Country of Origin Information (“COIs”) that were first used to support his allegations with regard to state protection, then to go against his allegations by mentioning that the situation has improved in India, sic, Pakistan. However, the same COIs were used and there had not been any explanation in terms of how the balancing exercise worked and what tests the Director had applied in concluding that the particular sections of the COI outweighed the others.

DISCUSSION

The Director’s Decision and Further Decision (“the Director’s Decisions”)

10.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances. Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine. I shall set out my reasons below.

11.Under Order 53, rule 4(1) of the Rules of the High Court, the applicant is out of time for making the application for leave for judicial review against the Director’s Decisions. He has not applied for extension of time. Even if the applicant is to apply for extension of time to take out the application for leave, such application should not be entertained because the applicant has not set out any exceptional circumstances in support of his application. See the authorities below.

12.In Stock Exchange of Hong Kong Ltd. v Onshine Securities Ltd [1994] 1 HKC 319, the Court of Appeal held that where an alternative remedy is available, a party subject to disciplinary proceedings should normally be left to pursue that remedy; judicial review in such a case should only be granted in exceptional circumstances. It further held that if the aggrieved party is not satisfied with the appellate tribunal’s decision, he can then apply for judicial review; but he will succeed only if, taking the procedure (original and appellate) as a whole, it can be seen that the aggrieved party has still not been fairly treated. 330C

13.The Director’s Decisions are subject to appeal to the Torture Claims Appeal Board (“the Board”) established under Schedule 1A of the Immigration Ordinance, Cap. 115 (“the Ordinance”), an impartial and independent tribunal constituted by qualified people appointed by the Chief Executive including retired judges or magistrates. See section 2(2) of the Ordinance.

14.The Board has the power to confirm or reverse the Director’s decision. It has to give written reasons and its decision is final. See section 23.

15.In De Smith’s Judicial Review 7th Edition, Harry Woolf, Jeffrey Jowell, Andrew Le Sueur, Catherine Donnelly and Ivan Hare, Sweet & Maxwell at 16-018 “The most straightforward substitute remedy is where the legislation provides an appeal. Judicial review is essentially a mechanism to be used where there is no statutory right of appeal. In almost all cases, the Administrative Court will regard a statutory appeal, whether to a court or a tribunal, as a proper substitute for judicial review though exceptional circumstances may dictate otherwise.” At para. 1-091, it says “The tribunal system …intersects with judicial review in two main ways. First, the tribunal system provides a more specialized method of supervising the legality (and in many cases the merits) of decision-making by public authorities…. The Administrative Court will be reluctant to grand permission to proceed with a claim for judicial review. Secondly, judicial review may in some situations be used to challenge the lawfulness of decisions taken by a tribunal.” At para. 16-020, it states: “The powers of a tribunal or court hearing an appeal will often be at least as extensive as those in judicial review (and perhaps greater). In most situations there can be no constitutional or practical objection to the Administration Court routinely refusing permission to proceed with a judicial review claim where there is a statutory appeal to a tribunal or a court. To hold otherwise would risk subverting Parliament’s intention in creating such appeals. …”

16.It is clear that the Board has a wider power of examining or cross-examining the applicant in the hearings.

17.For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decision

18.Regarding his ground of procedural irregularity, his main complaint is that he did not understand the language of the Director’s Decisions and the Board’s Decision. However, he also complains that he did not receive the Director’s Further Decision.

19.On the issue of non-receipt of the Director’s Further Decision, I have considered the address on the Director’s letter to the applicant dated 2 August 2017. It is exactly the same address that he has filled in Form No. 86 for his application for leave for judicial review. In other words, between 2 August 2017 and 8 May 2018, he resided at the same address. By virtue of Order 65, rule 5(1) service of the Director’s Further Decision can be made by leaving it at the applicant’s proper address. The Director has discharged his duty in the service of his Further Decision on the applicant under the law.

20.In any event, even if, for unknown reasons, the applicant has not received the Director’s Further Decision, he must have known this Further Decision by 8 May 2018, the date he filed his affirmation in support of his application, in which he stated this ground in support of his application.

21.On the question of language, by virtue of section 3(1) of the Official Language Ordinance, Cap. 5, English is the official language for the purpose of communication between the Government or any public officer and members of the public and for court proceedings.

22.In his affirmation, he complained that the Board’s Decision of 20 pages was written in English. He did not understand English. No one had translated it to him since he was not legally represented before the Board. He complained that it is procedurally unfair to him. At the hearing, upon questions put to him, he said that shortly after he had received the Board’s Decision, he asked his friend for assistance. His friend had explained the contents of the Decision to him and advised him to lodge an appeal. He therefore took out this application for leave. He understood that this is inconsistent with what he had said in his affirmation. He said that the affirmation was prepared by his friend. He simply signed it, trusting that his friend would put down everything he said in it.

23.From what the applicant has told me in court, it is obvious that he understood the Board’s Decision before making this application.

24.Regarding how the Director had exercised his balance in evaluating the COIs, which were considered by the Adjudicator of the Board as well, it is a matter for the Director and the Adjudicator in their exercise of their discretion as to what weight should be given to which part of the information. It is unnecessary for them to explain how they exercised their discretion. The applicant has not stated in what respect they had exercised their discretion wrongly or unfairly or they were unreasonable to have reached their decisions as they did. This ground cannot sustain.

CONCLUSION

25.Having considered the applicant’s grounds for his application, I find that he has failed to show that his application for judicial review has any prospect of success. I refuse to grant leave to the applicant for judicial review of the Board’s decision. Accordingly, I dismiss his application.

Dated 5^th day of December 2018

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