Aamir Nadeem v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL1453/2018

[2019] HKCFI 1656

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1453 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 to apply for judicial review against the respective decisions 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. He arrived in Hong Kong on 16 December 2015 illegally through China. He was arrested by police on same day and was referred to the Immigration Department for further investigation. He lodged a non-refoulement claim on 20 December 2015.

3.In his statements given to the Director and the Board, he said that he would be harmed or killed by a Pakistan Muslim League (Nawaz) (“PMLN”) member, Maqbool (“M”) and his supporters because he refused to leave the Pakistan Tahreek-e-Insaf (“PTI”) and join PMLN. He was also framed up for destroying government premises and for the murder of a policeman.

4.Because of his refusal to leave PTI to join PMLN, he was attacked twice in 2013 by a group of people together with M. They had weapons of wooden sticks and pistols. He was once beaten and he fainted. He was admitted to hospital for 6-8 weeks and one of his friends was killed. He was later told that the police were looking for him for destroying government premises and for murdering a policeman. He had moved to other places. Finally, he decided to come to Hong Kong.

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.  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”).

6.By Notice of Decision 22 May 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board

7.The applicant appealed to the Board and attended a hearing before the Adjudicator on 14 May 2018.

8.By Decision dated 6 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

9.The Adjudicator stated in the Board’s Decision that the number or nature of the inconsistencies in the applicant’s evidence was serious enough to undermine the reliability of his allegations [50]; that she did not find the applicant’s evidence credible and she put very little weight on it [53]. The Adjudicator further found that the applicant had not been tortured, the involvement of government officials was for the investigation of crimes and state protection was available to the applicant; that internal relocation was a viable option for the applicant [182].

Application for leave to apply for judicial review

10.By Form 86 dated 24 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 Director’s Decision and the Board’s Decision respectively.

11.In his affirmation in support of his application dated 24 July 2018, the applicant relied upon the grounds below:

(1)  he did not have legal representation or legal assistance for the appeal;

(2)  the Board had adopted a biased approach by cherry-picking the Country of Origin Information to say that he had state protection; and

(3)  the Board’s Decision was not translated to him.

DISCUSSION

The Direction’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 [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the 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.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 her application.

The Board’s Decision

16.The applicant appeared before me. He confirmed that he considered that he had had a fair hearing before the Adjudicator. But he was not happy with her Decision.

17.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 (1) fails.

18.Ground (2) is the applicant’s opinion without any evidence to support it. It fails.

19.The applicant said in court that his friend had assisted him with the hearing bundle and the Board’s Decision. Ground (3) fails.

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

CONCLUSION

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

Dated the 2^nd day of July 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