Abbas Syed Manzar v. The Director of Immigration and Another

HCAL1092/2018

[2019] HKCFI 340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1092 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 decision of the Director of Immigration (“the Director”) and the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

The applicant

2.The applicant is a Pakistani. He had made a non-refoulement claim back in 2010 and his application was refused. He appealed to the Board and his appeal was refused. He departed from Hong Kong for Pakistan on 26 July 2011.^[1] On 27 July 2014 he was arrested by police for illegal remaining in Hong Kong.  On 30 July 2014, he was referred to the Immigration Department for investigation. On 31 July 2014, he lodged his non-refoulement claim. He claimed that if he was refouled to Pakistan, he would be in fear of harm from the terrorists because he belonged to Shia Sect and PMLQ.

3.The Board had asked him quite a lot of questions, testing his evidence that he had given to the Director. He stated that he was a Shia and he was targeted by the rival sect. Many people of the other sect had tried to harm or kill him. But he was unhurt. He is a poet. He used his poet to promulgate Shia belief. The rival sect would kill him. He had been targeted two or three times before coming to Hong Kong.

The Director’s Decision

4.The Director considered his application in relation 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”).

5.By Notice of Decision dated 24 Februaty 2017 (“the Director’s Decision”), the Director refused his application on the ground that he failed to substantiate his claims.^[2]

The Board

6.The applicant appealed to the Board and he attended a hearing on 8 February 2017 before the Adjudicator.

7.By Decision dated 4 April 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

8.Having considered the applicant’s evidence, the Adjudicator said in the Board’s Decision:

“103.  The Board has formed the view that the Appellant is not a witness of truth and that he has fabricated his claims in relation to his high profile as a Shia poet, scholar and activist fighting for the rights of the Shia minority…

122.  Having carefully assessed the Appellant’s evidenc and considered the available COI [Country of Origin Information], the Board rejects them, both individually and cumulatively.

131.  If the Appellant returns to Pakistan he will not place himself at real risk of any of the prescribed types of harm, because his poetry is not of a kind which will bring him to anyone’s adverse attention.

133.  In light of the findings above, the Board considers there is not a real risk the Appellant would face any of the proscribed forms of harm should he return to Pakistan.”

Application for leave for judicial review

9.By Form 86 dated 13 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 Director and the Adjudicator of the Board respectively.

10.In his affirmation in support of his application filed on 13 June 2018, he referred to the grounds attached to Form 86, which I shall summarize below:

(1)  the Director had not given sufficient consideration to state acquiescence before reaching his determination;

(2)  the Director had failed to give appropriate weight to the Country of Origin Information (“COI”) in favour of his case;

(3)  the Director only selected the COIs which suited his pre-occupied opinion;

(4)  the Board had not made sufficient enquiry into the matter;

(5)  the Adjudicator required him evidence without appreciating that he was unable to do so; and

(6)  the Board had failed to give the applicant sufficient chance to arrange evidence to prove his case.

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, after considering the applicant’s evidence, rejected his evidence. Therefore, he had no factual basis in support of his claim. Facts are to be found by the Board. See Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14.

15.Grounds (1) (2) and (3) are irrelevant as the Adjudicator disbelieved him.

16.Ground (4) is his opinion without any evidence to support it. It fails.

17.Ground (5) fails too because the Board was entitled to ask him to prove his case. It is for him to tell the Board his difficulty, which he did not do.

18.Ground (6) fails because the applicant was unable to say what evidence he would like to adduce at the hearing before me.

19.Having considered the evidence, I find that the applicant fails to demonstrate that the judicial review as proposed has any reasonable chance of success.

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 15^th day of February 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