Imran Khan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL1020/2018

[2019] HKCFI 269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1020 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 the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is a Pakistani national, who came to Hong Kong illegally. He was arrested by police on 15 March 2014 and was referred to the Immigration Department for investigation. On 2 April 2014, he lodged his non-refoulement claim and was released on recognizance on 11 July 2014. He claimed that if he was refouled to Pakistan, he would be harmed or even killed by relevant Taliban people because he did not give them extortion money.

3.In his statements given to the Director and the Board, he stated that in 2013, he was approached by people who claimed to be from the Taliban and demanded money from him. He was unable to pay and they persisted with death threat. The applicant had reported to police. But the police told him that the Taliban was too powerful that they could not protect him. In 2014, he decided to come to Hong Kong.

The Director’s Decision

4.The Director had considered the applicant’s application be reference to the risks below:

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”).

5.By Notice of Decision dated 2 November 2017, the Director rejected the applicant’s application for the reason that he was unable to substantiate his claim.

The Board

6.The applicant appealed to the board. He attended a hearing before the Adjudicator on 12 April 2018.

7.By Decision dated 24 May 2018 (“the Board’s Decision”), the Board refused the applicant’s appeal and confirmed the Director’s Decision.

8.Having considered the applicant’s evidence, the Adjudicator found:

“98. …the Board is not satisfied that the Appellant is a reliable witness, or that his claims are credible, and does not accept much of his account.

100.     …the Board does not consider there to be any risk of severe pain or suffering being inflicted on the Appellant should he return to Pakistan….”

Application for leave for judicial review

9.By Form 86 dated 5 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 of the Board and the Director respectively.

10.In his affirmation in support of his application filed on 5 June 2018, the applicant set out his reasons, which I shall summarized below:

a.  he did not understand English well and he was not legally represented for the appeal before the Board;

b.  there was insufficient assistance to meet the high standard of fairness as set out in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187;

c.  the Board’s Decision was not translated to him and he did not understand it;

d.  the hearing bundle prepared by the Director was without translation and it was only sent to him shortly before the hearing; and

e.  there was no explanation as to how the Director had exercised his balance in relation to the Country of Origin Information for and against his case as he ultimately held against him.

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 has 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.It is obvious that the Board disbelieved the applicant’s facts as he alleged. The applicant’s claim therefore has no factual basis in support of his claim.

15.In the hearing before this Court, the applicant said that he had asked his friend to explain the contents of the hearing bundle to him before the appeal hearing. He had no difficulty in the appeal hearing. His friend had also explained the Board’s Decision to him. He had no complaint against the screening process or the appeal hearing before the Board.

16.10. a. is his opinion, not substantiated by any fact or evidence. It does not constitute substantiated ground in support of his application.

17.10. b., c, and d are simply not true as confirmed by the applicant himself in court.

18.As to 10.e., the Director had considered the Country of Origin Information and made his decision accordingly. It is not necessary for him to explain in his decision how he give weight to the opinions or findings of the various reports. There is no evidence that he had taken into consideration matters which are irrelevant to the issues or that he had not taken into consideration matters which are relevant to the issues, rendering his decision Wednesbury unreasonable. I see nothing amiss in his approach.

19.Having considered the applicant’s reasons in support of his application, I find that the applicant fails to show that he has reasonable chance in his proposed judicial review.

CONCLUSION

20.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.

Dated the 31^st 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