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

HCAL1649/2018

[2019] HKCFI 625

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1649 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 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 an Indian national.

3.He claimed that if he was returned to India, he would be harmed or killed by SK Tariq (also known as Sabba) and his people.

4.In his statements to the Director and the Board, he said that Sabba’s grudge against him stemmed from a land dispute where Sabba wanted to take over a site, which was dedicated as a club for the local community. He protested and was involved in a fight. He had hit Sabba’s father on the head, which bled. He was wanted by the police. He said that he would be arrested and detained by the police.  He also thinks that the prison condition in India are life threatening and the judiciary in India cannot render him any assistance.

The Director’s Decision

5.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”).

6.By Notice of Decision dated 19 January 2017 (“the Director’s Decision”), the Director rejected his application for the reason that his non-refoulement claim was not substantiated.

The Board

7.The applicant appealed to the Board. He attended a hearing on 11 June 2018.

8.By Decision dated 7 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

9.The Adjudicator found in the Board’s Decision:

“25. During the hearing, I asked the appellant a series of detailed and open questions in an attempt both to assist him to elicit appropriate and reasonably detailed information and to test his assertions. His account was so vague, despite repeated questioning and so inconsistent with his previous claim on material points, that I have reached the conclusion no credence whatsoever can be attached to any of his statements.

32. … …In my judgment, the types of information I refer to above are reasonably within the appellant’s power to procure… His failure apparently to make any effort to procure and present this type of information cannot be definitive of itself, but it contributed to my overall conclusion as to this appellant’s negative credibility.”

Application for leave for judicial review

10.By Form 86 dated 16 August 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision.

11.In his affirmation in support of his application dated on 16 August 2018, the applicant relied upon the grounds below:

(1)  he was sick for the interview for the screening and his lawyer had requested another interview but was rejected;

(2)  the Immigration officer should not assess his claim without a screening;

(3)  there was no language assistance to him for the appeal;

(4)  he had no legal representation for the appeal;

(5)  the Hearing Bundle was not read to him and there was no translation for it;

(6)  the Director cherry picked the COI to rebut his claim and adopted a biased and fomula approach in coming to state protection being available to him;

(7)  the Board’s Decision was not read or translated to him; and

(8)  he did not understand the contents of the Board’s Decision.

DISCUSSION

The Director’s Decision

12.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 considered his appeal and made its Decision.

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

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

The Board’s Decision

15.The applicant appeared before me. He confirmed that he considered that he had had a fair hearing before the Adjudicator. He also said that he had told the Adjudicator that he was not interviewed by the Immigration officer.

16.Therefore, the procedural irregularity for the screening had been addressed by the Adjudicator as the Adjudicator had the power to hear the applicant afresh. See Rahman Mohammad Arifur v Li Kwok-wai, the Adjudicator of the Non-Refoulement Claims Petition Office and Director of Immigration [2018] HKCFI 2726, HCAL 1076/2018, 13 December 2018, §19. Grounds (1) and (2) fail.

17.Ground (3) does not stand because it is for the applicant to seek assistance for his language problem. He may seek assistance from the District Office, Resource Centre of the High Court, the Legal Aid Department, the Immigration Department or even the Board. He had not even tried any of these sources. He has no ground to complain.

18.The Court of Appeal in  Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.”  Ground (4) fails.

19.Ground (5) is a non-point as he said in court that he had no difficulty with the Adjudicator and he thought he had a fair hearing himself.

20.Ground (6) fails because it is the Director and the Adjudicator’s discretion as to what evidence should be given weight. There is no evidence of any formula for their exercise of discretion.

21.Grounds (7) and (8) will not assist the applicant as he had already raised the application for judicial review. He reserved right to make further submissions to me in his affirmation. But he had made no further submission in the hearing.

22.The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

23.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 March 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

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