Case Document

100%Judiciary

HCAL1039/2018

[2019] HKCFI 167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1039 of 2018

BETWEEN

	Raja Waqar Khan	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	1^st Putative Respondent
	The Director of Immigration	2^nd Putative Respondent

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 be refused.

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

THE APPLICATION

1.This is the applicant’s application for leave for judicial review against the Decisions 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 national, who came to Hong Kong through China illegally on 7 July 2013. On 12 July 2013, he was arrested by police. On 29 November 2014, he lodged his torture claim to the Director.

The grounds of non-refoulement protection

3.The applicant relies upon the ground in support of his non-refouleemnt claim that if he is refouled to Pakistan, he will be harmed or killed by the drug selling people and/or their subordinates who are related to Pakistan Muslim League (N). These people had approached him and asked him to sell drugs in secondary schools. He reported the matter to the police, who took no action. Those people had, on a number of occasions, beaten him up and he was admitted in hospital in Pakistan.

The Director’s Decision

4.By two screen processes, the Director assessed his application by reference to the following risks^{^[1]}:

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

(2)  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”);

(3)  persecution with 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

(4)  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”).

5.By Notice of Decision dated 24 November 2016, the Director rejected the applicant’s non-refoulement claim on all the above grounds for the reason that his claim was not substantiated.

The Board’s Decision

6.The applicant appealed to the Board and on 9 April 2018. He attended a hearing before the Adjudicator of the Board. At paragraph 21 of his Decision, the Adjudicator said that he attached no credence at all to the applicant’s claim to have entered Hong Kong in search of international protection.

7.At paragraph 22, he said “To summarize its findings: the Board accepts no part of the Appellant’s claim.”

8.By Decision dated 20 April 2018 (“the Board’s Decision”), the Board refused the applicant’s appeal and confirmed the Director’s Decision. The Adjudicator of the Board had set out his reasons for disbelieving the applicant’s story^{^[2]}.

9.Since the Board rejected all the applicant’s evidence, there is no basis in support of the applicant’s application for non-refoulement.

Application for leave for judicial review

10.By Form 86 dated 7 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the decisions of the Adjudicator and the Director.

11.The applicant has filed his affirmation in support of his application, in which he set out the grounds as follows:

(1)  the process of non-refoulement screening did not meet the higher standard of fairness as laid down by the Court of Final Appeal in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187;

(2)  he was never provided with proper legal and language assistance;

(3)  he was not advice on judicial review application;

(4)  the Board Decision was not translated to him;

(5)  the Director had adopted some Country of Origin Information (“COIs”) for him and some against him; but there was no explanation as to how he balanced those competing views; and

(6)  the Hearing Bundle for the appeal was not translated to him.

DISCUSSION

12.At the hearing before me, I had made enquiry with the applicant. He was at pain to explain to me that the interpreter at the hearing before the Board was not providing good service. He could understand some English. He knew that the interpreter was not interpreting all he said to the Adjudicator. I asked him if he had told the Adjudicator about this. He said he had. He said that the Adjudicator took no action to redress his concern. I simply disbelieve his statement because I cannot think of any reason for the Adjudicator to behave in this way.

13.The most important issue for the Adjudicator was whether the applicant came to Hong Kong for international protection. Having considered the evidence from the applicant, he did not believe the applicant. He is quite entitled to come to his conclusion after considering the evidence. The Court of Appeal had held in Ali Haider CACV8/2018, [2018] HKCA 222 at §13: “Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers”.

14.Ground (1) is his opinion without evidence to support. It fails.

15.He had obtained legal assistance from the Duty Lawyer Scheme when he went through the Unified Screening Mechanism, the fact that he had no legal representation at the appeal hearing has been held by the Court of Appeal in Re: Ahmea Syed Rafiq CACV 272/2007 [2018] HKCA 78, 20 March 2018, to be not a ground for judicial review. Ground (2) fails.

16.His allegation that he did not understand the Director’s Decision and the Board’s Decision is not believable because he was able to raise the issue of the Director having adopted some of the COIs for him and some against him, questioning the way the Director had exercised his balance. This query demonstrates that he understands the contents of the Director’s Decision quite well. Grounds (4) and (6) fail.

17.It is not necessary of the Director or the Adjudicator to demonstrate their ways of thinking or analysis of the evidence before them. The applicant is unable to identify the error they have committed in their analysis of the evidence. Ground (5) fails.

CONCLUSION

18.For the reasons above, I find that the applicant’s application for judicial review has no reasonable chance of success. I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.

Dated the 23^rd day of January 2019

(Alan Ngan)
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 his 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 23/1/2019
Raja Waqar Khan

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 23/1/2019

Torture Claims Appeal Board/Non-refoulement Claims Petition Office
1^st Putative Respondent’s ref. no.:
USM 5451/16/12/98/P1232

The Director of Immigration
2^nd Putative Respondent’s ref. no.:
QA T/C 1041/16 (formerly RBCZ 3000780/14)

Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)

Form CALL-1

[1] See §§3 & 4 of the Notice of Decision of the Director

Cites 4 cases

Cases cited in this judgment