Sattar Abdul v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL1089/2018

[2019] HKCFI 137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1089 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 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 Adjudicator of 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 17 July 2009. On the same day, he was arrested by police. On 20 July 2009, he lodged his torture claim to the Director. ^[1]

The grounds of non-refoulement protection

3.The applicant relies upon the ground in support of his non-refoulement claim that if he is refouled to Pakistan, he will be harmed or killed by family members of Siara, his female friend in Pakistan, because they did not agree with their relationship.

4.In his statements to the Director and the Board, the applicant said that in 2008, he was acquainted with a girl, Siara, who lived nearby. They walked together on the street. In early 2009, they were seen by Siara’s brother, who was riding a motorbike on the road. The brother shouted at him and drew out a pistol to shoot him at his head. He managed to escape. The applicant’s father arranged to move him to Lahore, where he stayed for six months. Then his father said that Siara’s brother was still looking for him. He arranged the applicant to flee to Hong Kong.

The Director’s Decision

5.Through two screening processes, the Director assessed his application by reference to the following risks:

a.  risk of torture under Part VIIC 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.  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 6 July 2017 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim on all the above grounds.

7.The applicant appealed to the Board. On 3 May 2018, he attended a hearing before the Adjudicator of the Board.

The Board’s Decision

8.By Decision dated 7 June 2018 (“the Board’s Decision”), the Board refused the applicant’s appeal and confirmed the Director’s Decision. The Adjudicator of the Board believed that the applicant was acquainted with the girl and her family did not agree to their relationship. However, she did not believe the applicant’s account of the incident that Siara’s brother had ever directed a gun at the applicant, that he had fired a shot or he intended to kill the applicant. See paragraphs 13-15 of the Board’s Decision.

Application for leave for judicial review

9.By Form 86 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 Board’s Adjudicator and the Director.

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

a.  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;

b.  the Duty Lawyer scheme had not provided him with a written translation of his Answer 35 despite his request for it;

c.  the Board’s Decision was not translated to him;

d.  the hearing bundle for the appeal was not translated to him; and

e.  he was not advised of his right of appeal and how to do the appeal.

DISCUSSION

The Director’s Decision

11.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances.  In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board was created by the legislature, with wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decision.

12.Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

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

The Board’s Decision

14.The burden is on the applicant to set out the grounds in support of his application, such grounds have to bear substance, not just “putting forward a bare and flimsy assertion” Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29.

15.Paragraph 10.a. is his comment only. It does not constitute a substantiated ground.

16.As to the issue of translation, I have made enquiry with the applicant in the hearing before me. He said that his wife, who is a Hong Kong resident, had explained the contents of the hearing bundle, the Director’s Decision and the Board’s Decision to him. He did not come across any problem at the hearing before the Adjudicator.

17.He had answered all the questions put to him by the Adjudicator and all his answers are true and correct.

18.Paragraph 10.e. is a non-point as he had appealed to the Board. He said he came across no problem at the hearing.

CONCLUSION

19.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 judicial review. Accordingly, I dismiss his application.

Dated the 23^rd day of January 2019

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