Afzal Muhammad v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL1323/2018

[2019] HKCFI 955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1323 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 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 national. He came to Hong Kong illegally and was arrested by police on 8 December 2012. He was detained in the Immigration Centre for investigation. He lodged his non-refoulement claim on 27 January 2014.

3.He claimed that if he were repatriated to Pakistan, he would be harmed or killed by Zafullah Cheema and/or his people because of a land dispute with him.

4.In his statement to the Director and the Board, he said that Cheema was a powerful local member of the Provincial Assembly. He was interested in a piece of land adjoining his own piece of land owned by his uncle. He offered to buy his uncle’s piece of land so as to extend his own land for a petrol service station. His uncle refused thereupon Cheema intimidated his uncle. His uncle was shot dead near the petrol station by Cheema’s people. He reported to police. The police did not take any action but only advised him to settle the matter with Cheema. Cheema had also framed up cases of robbing his home and attempting to kill him. He was scared and moved to live with his maternal uncle. He then decided to come to Hong Kong through China.

The Director’s Decision

5.His claim for torture risk under Part VIIC of the Immigration Ordinance, Cap.115 (“the Ordinance”) having been rejected, the Director considered his application in relation to the following risks:

a.  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”);

b.  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

c.  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 14 September 2017 (“the Director’s Decision”), the Director refused his application for the reason that his non-refoulement claim was not substantiated.

The Board

7.The applicant appealed to the Board. On 16 April 2018, he attended a hearing before the Adjudicator.

8.By Decision dated 21 June 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.Having considered his evidence, the Adjudicator rejected the applicant’s evidence.

10.At paragraphs 42 and 47 of the Board’s Decision, the Adjudicator said:

“42. … …His evidence at the hearing was neither coherent nor plausible, and on a number of issues was indeed counter to known facts.”

“47 … …I find the Petitioner’s claims to be generally lacking in credibility, and find that he has not established that there are ‘substantial grounds’ which enable the conclusion that he will face a real risk of ill-treatment on the basis of the dispute with the Cheema family.”

Application for leave for judicial review

11.By Form 86 dated 9 July 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.

12.In his affirmation in support of his application dated on 9 July 2018, he set out the reasons in support of his application:

(1)  the Director was biased and simply adopted a formula to reject his application;

(2)  the Director ignored the fact that police effectiveness varies and corruption especially within the lower levels of police is common;

(3)  the director had not sufficiently considered the Country of Origin Information (“COI”) submitted by his lawyer, but selected the information which was averse to his interest and he had not explained how he reached his decision that improvements in police professionalism were made;

(4)  Pakistan is unable to give state protection to him;

(5)  the Board’s Decision was not translated to him, so he was unable to set out the grounds and he reserved his right to make further submissions at the hearing.

DISCUSSION

The Director’s Decision

13.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 Decisions 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.

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

15.Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018 held that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.” [45]

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

The Board’s Decision

17.At the hearing before me, the applicant did not make any further submission on the grounds of his application.

18.The Adjudicator had indeed considered the Director’s Decision and he confirmed it.

19.Grounds (1), (2) and (4) are only his opinions unsubstantiated by any evidence.

20.Ground (3) is unsupported by any evidence as the Director had considered the relevant COI. He exercised his discretion in weighing the information before coming to his conclusion.

21.Ground (5) was for him to reserve his right to make further submission to me. Since he had no further submission, this ground is spent.

22.I find that the applicant is unable to show that his judicial review has any reasonable chance of success.

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 16^th day of April 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