Hussain Iftikhar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL1354/2018

[2019] HKCFI 1911

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1354 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 came to Hong Kong illegally on 8 July 2010. He lodged his non-refoulement claim on 5 October 2015.

3.He claimed that if he was repatriated back to Pakistan, he would be harmed or killed by his former classmates who belonged to Shia Sect as he belonged to the Sunni Sect and was an active member of Taliban Jamat and Al-Sunni Jamat. He claimed to have suffered three attack incidents in 2001, April 2002 and July/August 2002.

4.In his statement given to the Director and the Board, he said that he had had religious beliefs with his classmates in 2001 when he was a 17-year student and he was attacked by the Shia members inside the school. They asked him to join Shia Sect. He refused. In April 2002, he was attacked by the Shia members in the playground. They slapped him and hit him with fists. In July/August 2002, he was attacked by five masked men on the street. They abducted him and grabbed him to a nearby bush where he was attacked with knife all over his body and one of them shot a gun at his leg. This person warned him if he did not leave Sunni Jamat and join Shia Sect, they would kill him next time. They then fled the scene. He was admitted to hospital for 20 days. He moved around and stayed in his aunt’s place for five years. In 2008, he discovered that the Shia group was still looking for him. He then moved to his father’s friend’s place. He arranged to come to Hong Kong through China.

The Director’s Decision

5.The applicant previously made the torture claim and was rejected by an Immigration Officer on 27 July 2012. The Director therefore considered his application in relation to the following risks other than the risk of torture:

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

The Board’s Decision

7.The applicant appealed to the Board and attended a hearing before the Adjudicator on 28 March 2018.

8.The Adjudicator heard the applicant afresh. Having considered his evidence, the Board by its decision dated 15 June 2018, refused his appeal and confirmed the Director’s Decision (“the Board’s Decision”).

9.The Board had raised doubt about the credibility of the applicant’s claim. see §76 of the Board’s Decision. The Board did not accept the events as stated by the applicant and that his enemies would continue to pose any serious harm to him. See §§81, 82 and 83. The Board found that state protection was available to the applicant. See §84. Finally, the Board found that there was no state involvement in the applicant’s case. See §85.

Application for leave to apply for judicial review

10.By Form 86 dated 11 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.

11.In his affirmation in support of his application dated 11 July 2018, he set out the grounds below:

(1)  he was unable to attend the screening because of illness and he had the medical certificate as proof, but the immigration officer proceeded to assess his application without giving him another interview, which amounts to procedural irregularity as he had the right to elaborate his facts in the interview;

(2)  the Director had adopted a biased and formula approach in relation to state protection issue in that he cherry-picked the Country of Origin Information (“COI”) which is averse to his claim;

(3)  the Adjudicator adopted the same approach as the Director did in the state protection issue;

(4)  the Board’s Decision was not translated to him and he reserved his right to make further submissions at the hearing.

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 investigation in the matter. The Board had considered his appeal and made its Decision.

13.Ground (1) appears to be special circumstances which require further consideration because there is no dispute that the immigration officer had asked the applicant to produce a medical certificate to prove that he was unfit to attend the interview scheduled on 15 June 2017 by 16 June 2017. The applicant had complied with the request and the immigration officer was satisfied that he was unable to attend the interview on 15 June 2017 on medical reason. Nevertheless, the immigration officer decided to assess his case on the papers. He sent the questionnaire to the applicant for answers. The applicant had provided the answers as requested. The Director assessed his application on the papers accordingly.

14.Under section 37ZB of the Immigration Ordinance, Cap 115 (“the Ordinance”), the immigration officer has the power to require information from the applicant. Under section 37ZB(1)(b), the immigration officer has to have an interview with the applicant:

(1)  After a completed torture claim form is returned by a claimant, an immigration officer—

(a)  may require the claimant to provide the immigration officer with any information or documentary evidence related to the claimant’s torture claim that the immigration officer specifies; and

(b)  must require the claimant to attend an interview to provide information and answer questions relating to the claimant’s torture claim.

15.The Adjudicator was alive to this issue as stated in her Decision dated 15 June 2018. See paragraphs 6 & 7 of the Board’s Decision.

16.Against the above background, the Adjudicator decided she would hear the case afresh. See paragraph 10.  I consider that the Adjudicator had given good reasons for her to hear the case 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.

17.Therefore, the procedural irregularity under section 37ZB of the Ordinance has been addressed and remedied by the Board.

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

19.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]

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

The Board’s Decision

21.Ground (1) has been dealt with. Grounds (2) and (3) relate to the discretion of the Director and the Adjudicator in the weighing of the evidence before them in relation to the COI. These grounds are the applicant’s opinions without any evidence in support of it. They are therefore unsubstantiated and fail.

22.At the hearing before me, the applicant confirmed that he had a fair hearing before the Board and his friend had explained the Board’s Decision to him. The applicant did not make any further submissions on the grounds in support of his application. Ground (4) is thus inconsistent with he said before this court.

23.For the reasons above, I find that the applicant fails to show that he has any reasonable chance of success in his judicial review.

CONCLUSION

24.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. According, I dismiss his application.

Dated the 29^th 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