Ali Sharjeel v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

Case No.HCAL 1192/2018[2019] HKCFI 1772

Court

High Court CFI

Date16 Jul 2019

Judge—

Case Document

100%Judiciary

HCAL1192/2018

[2019] HKCFI 1772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1192 of 2018

BETWEEN

	ALI Sharjeel	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

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 Director of Immigration (“the Director”) and 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 on 7 July 2013 and he was arrested by police on 10 July, 2013. On 12 July, 2013, he was referred to the Immigration Department for investigation. On 13 July 2013, he made the non‑refoulement claim.

3.He claimed that if he was repatriated to Pakistan, he would be harmed or killed by Rabia’s family and their people due to his love affair relationship with Rabia.

4.In his statement to the Director and the Board, he said that he fell in love with Rabia, his classmate in 2011. They were of different castes. Rabia’s family was wealthy with connection with politicians. In March 2013, Rabia’s father was aware of their relationship. He disapproved. He arranged police officers to arrest him and took him to the police station where he was assaulted by police officers for three days. He saw Rabia’s father and her uncle inside the police station. He was released without any charge. When he was going back home, he saw several people including those policemen who had beaten him inside the police station. He did not go back home but stayed in his friend’s home. His parents advised him not to return home. He decided to leave Pakistan. He left for China on 3 May 2013. From China, he sneaked into Hong Kong illegally on 7 July 2013.

The Director’s Decisions

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 dated 18 February 2016 and Notice of Further Decision dated 18 May 2017, collectively call “the Director’s Decisions”, the Director refused his application for the reason that his claim was not substantiated.

The Board

7.The applicant appeared before the Adjudicator of the Board together with his legal representative provided by the Duty Lawyer Scheme, a rather odd case as for other cases the Duty Lawyer Scheme would not provide legal representation for the claimants at the Board. The applicant informed this Court that it was because the Duty Lawyer Scheme considered that he had a strong case, therefore it had provided him with a lawyer.

8.The applicant had elected to give evidence at the hearing and he was cross-examined by the legal representative for the Director.

9.The Board, by Decision dated 6 June 2018 (“the Board’s Decision”) refused the applicant’s appeal and confirmed the Director’s decisions.

10.Having considered his evidence, the Board found that he had some doubts on the truthfulness of the applicant’s evidence in relation to his torture in the police station [63]. The Board had also considered the Country of Origin Information (“COI”) and found that the applicant should have reasonable state protection [73]. The Board found that the applicant failed to establish his case under BOR 3 risk [84], BOR 2 risk [102] and persecution risk [103]. Therefore, the Board considered it was unnecessary to consider internal relocation [99].

Application for leave to apply for judicial review

11.By Form 86 dated 25 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 Board respectively.

12.In his affirmation in support of his application dated 25 June 2018, he set out the reasons in support of his application below:

(1) the Adjudicator did not consider his appeal properly as he had twice in his determination referred his country to Bangladesh whereas he is a Pakistani;

(2) there was no discussion on the supporting documentations;

(3) the Adjudicator did not make his own analysis on the COI as he seemed to have copied the views of the Director.

DISCUSSION

The Direction’s Decisions

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 [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.

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

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

The Board’s Decision

17.The applicant appeared before me and raised the ground that the Adjudicator might have considered another case because he referred to his country as Bangladesh. However, he confirmed that other information in relation to his personal background and the incidents were correct. I find that those were the typing mistakes only. Ground (1) fails.

18.The applicant had not identified what supporting documents he was referring to. In the absence of indication by the applicant, the Adjudicator cannot be blamed for not discussing the matter. Ground (2) fails.

19.The Adjudicator was entitled to consider the evidence before the Director, such as the COI. The Board’s decision shows that he had considered the COI himself and he agreed with the views of the Director. He was entitled to do so. Ground (3) fails.

20.I find that the applicant fails to show the he has 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 16^thday of July 2019

	(Henry Ng)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 16/7/2019 ALI Sharjeel Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 16/7/2019 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: USM 3195/16/2/161/P857 Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 1240/15 & RBCZ 9000987/16 (formerly RBCZ 352/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)