Mehmood Nasir v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL1663/2018

[2019] HKCFI 2248

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1663 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 8 May 2013, the same day he was arrested by police and referred to the Immigration Department for further investigation. A letter of 31 May 2013 from the local United Nations High Commissioner for Refugees confirmed that he had attempted to apply for refugee protection previously. On 11 March 2014, he lodged a non-refoulement claim.

3.His reason for his application is that he would be killed by the sons of Afzal if he returned to Pakistan because he had accidentally killed Afzal (Refer to para 2 of Immigration decision).

4.In his statements given to the Director and the Board he said that in 2012, he had killed his neighbour by accident. He had settled this matter with the neighbour’s family where he paid PKR30,000 (equivalent to HK$2000). However, the deceased neighbour’s son called and threatened him. He moved to Rawalpindi, where he stayed for nine months. He had reported the matter to police in Rawalinidi, but they took no action. Then, he came across the neighbour’s son on the street. He moved to other towns (2 towns in total). He then 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 dated 8 February 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board’s Decision

7.The applicant appealed to the Board but he failed to attend a hearing before the Adjudicator on 16 April 2018 without any explanation.

8.By Decision dated 5 July 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case carefully, bearing in mind all the cautions that the Board should have as guided by the courts in the authorities. It concluded that it accepted no part of the applicant’s claim [18].

Application for leave to apply for Judicial Review

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 17 August 2018, the applicant relied upon the following grounds:

(1)  no language assistance for his appeal;

(2)  the hearing bundle was given to him shortly before the hearing and he did not understand the language;

(3)  no legal representation for his appeal;

(4)  Board’s Decision was not translated to him;

(5)  there was no hearing for the appeal-unfair.

DISCUSSION

The Director’s Decision

12.In the decision 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 held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the 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. Their respective Decisions had been explained to him by his lawyer and his friend respectively. He considered that he had had a fair hearing before the Board.

17.He was asked why he did not attend the hearing before the Board. He said he had knee pain. But he did not ask for another hearing.

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.The Court of Appeal in Re Magar Surendra [2019] HKCA 667,13 June 2019 held that no language assistance for the applicant cannot be a ground in support of his judicial review. Grounds (1) and (4) fail.

20.Ground (2) fails as he said that his friend had explained the hearing bundle for him.

21.The Court of Appeal in Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178,   26 March 2018 §22 held that the applicant has not absolute right of free legal representation at every stage of the proceedings. Ground (3) fails.

22.The Adjudicator said in the Board’s Decision that the applicant failed to appear before the Board without any explanation or excuse [15]. He was entitled to consider the applicant’s appeal on the evidence before him. Before me, the applicant said that he had knee pain and he did not attend the hearing before the Appeal Tribunal. But he did not ask for another hearing. He cannot complain that there had not been hearing for him. Ground (5) fails.

23.The applicant fails to show that he has a reasonable chance of success in his proposed 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 the judicial review. Accordingly, I dismiss his application.

Dated the 11th day of September 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