Khan Muhammad Wasiq v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL1648/2018

[2019] HKCFI 1280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1648 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 respective decisions of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”). He has applied for withdrawal of his application. Since this Court has now made its decision, his application was not entertained because it is unnecessary to do so and lest he may apply to restore it later.

The applicant

2.The applicant is a Pakistani national. He arrived in Hong Kong on 7 February 2016 illegally and was arrested by police on 8 February 2016. He was referred to the Immigration Department on 9 February 2016. He lodged a non-refoulement claim on 10 February 2016. He claimed that he would be killed if he returned to Pakistan.

3.In his statements given to the Director and the Board, he said that his grandfather had a piece of land, which was inherited by his father and other two brothers. His father and himself worked on the piece of land. The grandfather passed away. In 2015, the three brothers intended to divide the piece of land. But one of the uncle and his three sons wanted to kick his father out of the land. They threatened his father to leave the land. They reported to police. The police said that was a family dispute and they should resolve it themselves. One day in 2015, he and his friend went to the land and they met two of his cousins.  They beat him up on the street. He sustained internal muscle injury. His friend suggested he leave Pakistan. He accepted and left for China where he got a boat to sneak into 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.  risk of persecution by 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 29 December 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board

6.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 7 May 2018.

7.By Decision dated 19 June 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

8.The Board considered the applicant’s case carefully, bearing in mind all the cautions that the Board should do as guided by the courts in the authorities for this type of cases and found that his evidence given to the Director and to the Board was so confused and contradictory that it finally rejected all his evidence as the Board said:

“97. For the above reasons, based on the gaps, inconsistencies and other problems with the evidence, having carefully assessed the Appellant’s claims, the Board rejects them, both individually and cumulatively, in their entirety.”

9.The Board further held that even if the Board was wrong in its conclusion, it found that the applicant could safely and reasonably relocate within Pakistan [104].

10.In his 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 Director’s Decision and the Board’s Decision respectively.

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

(1)  the Director had put too much weight on the Country of Origin Information (“COI”) that does not reflect the true situation in Pakistan – the reason for not reporting to police was because, as his father said, it was no use and the police are corrupt, as shown by the COI;

(2)  the Board’s Decision was not translated to him; and

(3)  the Adjudicator merely took a formula approach in determining his case as the Adjudicator said that he was single, but in fact he had married in Hong Kong, which showed that the Adjudicator copied most of the observations from the Notice of Decision and never considered his case thoroughly

DISCUSSION

The Director’s Decision

12.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions with exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 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 that this Court to make investigation in the matter. The Board had heard her appeal and made its Decision.

13.The applicant has not set out any exceptional circumstances.

14.Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude 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.”

15.The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

16.The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. He could read English himself. He understood the Director’s Decision and the Board’s Decision as well. He considered that he had had a fair hearing before the Board.

17.I also put the Board’s findings above to him and asked him for his comments. He said that he had no comments.

18.It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

19.Grounds (1) is his opinion without any evidence in support of it.

20.Ground (2) is simply not true.

21.Ground (3) is again his comment. The Adjudicator might have overlooked the fact that he had married in Hong Kong. But this will not affect his analysis of the facts of the case. The Adjudicator is duty-bound to read and understand the Director’s Decision before he heard the applicant’s appeal. There is no substance in this ground.

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 23^rd day of May 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