Ehsan Qadir v. Director of Immigration

HCAL 323/2017 & HCAL 508/2017
(Consolidated)

[2019] HKCFI 2633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 323 of 2017

BETWEEN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 508 of 2017

BETWEEN

(Consolidated by the order of Deputy High Court Judge K.W. Lung dated 30 May 2019)

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

2.The applicant had, by another application HCAL 323/2017 dated 16 June 2017, applied for leave to apply for judicial review against the decision of the same Board. This application has not been heard.

3.The applicant submitted that the two applications are for the same purpose. However, this application has more documents than HCAL 323/2017. He asked this Court to consolidate these two applications.

4.I conceded to his request. By an Order, HCAL 323/2017 is consolidated with this application and these two applications are now heard together.

The applicant

5.The applicant is a Pakistani national. He arrived in Hong Kong on 21 July 2006 illegally through China. He was arrested by police on 5 March 2007 and referred to the Immigration Department for further investigation.

6.In his statements given to the Director of Immigration (“the Director”) and the Board, he said that if refouled, he feared that he might be harmed by his uncle, brother cousin and their four sons due to a land dispute.

7.The applicant’s father inherited a piece of land jointly with his brother from their father, the applicant’s grandfather. His father passed away when he was just three years old. He was unable to take over his father’s share of land because he was not yet of age. In 2003, he discussed with his uncle for claiming his share of the land. His uncle’s grandsons, that is, his nephews beat him with wooden sticks. His forehead and eye-brow bled. He went to see the doctor for medication. He went back to live with his uncle after this incident. Then he moved to live with his maternal aunt. In June or July 2014, he raised this issue of inheritance with his uncle again. A few days later, his nephews came to his house with three unknown persons. They beat him up with bare hands and kicked him. The third incident took place in June 2006 when he was working in his fruit shop where he was shot by three or four unidentified persons. He was not injured. He ran back to his aunt’s house. He received a phone call from his nephews threatening that they would kill him if they saw him. He did not report all the three incidents to police because he had no faith in police in Pakistan. He considered them to be corrupt. He decided to leave Pakistan and he did so in July 2006. He came to Hong Kong illegally.

The Director’s Decisions

8.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 (“the HKBOR”) (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”).

9.By Notice of Decision dated 20 June 2014 (“the Director’s Decision”) and Notice of Further Decision dated 10 January 2017 (“the Director’s Further Decision”), collectively called “the Director’s Decisions”, the Director refused his claim for the reason that his claim was unsubstantiated.

The Board

10.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 15 May 2017.

11.By Decision dated 29 May 2017 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decisions.

12.The Board considered the applicant’s case and, having considered the evidence, it concluded that the applicant had shown no grounds for non-refoulement protection of the risks above [44] based upon the following findings of fact:

“39. The real issue in this case, as I see it, is whether the Appellant is at risk of his uncle and other relatives carrying out their threats to kill him. In deciding this issue, I note that even though the property dispute began as long ago as year 2000, there has been no convincing attempt to carry out the threat. In 2003, the Appellant was beaten with sticks resulting in a wound to his head that needed stitches. In 2004, he was shot at. He does not know by whom as the attackers were too far away to be identified. The point is that if the Appellant’s uncle and family were desirous of killing the Appellant, they have made no real attempt to do so despite the opportunities of doing so. I conclude that, assuming the threat was made, then it was an empty threat to persuade the Appellant to drop his claim to the property and was never to be intended to be acted on.

41. I find too that the Appellant’s experiences and fears do not amount to persecution. He has no well-founded fear of persecution as the term defined in Article 33 of the RC.

42. Finally, I find that the Appellant will not arbitrarily be deprived of his life if he returns to Pakistan meaning that he cannot rely on BOR 2.

43. Even if there was any risk to the Appellant, which I do not accept, there is I find, no reason why the appellant could not move elsewhere in Pakistan in order to avoid his uncle and members of his uncle’s family…..”

13.In his Form 86, the applicant applied for leave to apply for judicial review of the Board’s Decision.

14.He relied upon the grounds attached to Form 86.

1.  The Director had not appreciated the issue of state acquiescence and had not taken into consideration that police in Pakistan is corrupt and they could not give protection to the citizens.

2.  The Director had not given weight to the evidence that the Pakistani police was incompetent.

3.  The Director did not give weight to the Country of Origin Information (“COI”) that supported his view that the Pakistani police was incompetent and corrupt;

4.  The Director failed to attain high standard of fairness.

5.  The Director had misread the COI and because of this, his decision was wrong.

6.  The Director’s Further Decision was unlawful because he failed to take into account the fact he was not legally represented and he was under mental stress.

7.  The Adjudicator failed to attain the high standard of fairness.

8.  The Adjudicator failed to make sufficient enquiry before finalizing the Decision as he failed to advise the applicant to obtain medical reports and/or evidence from Pakistan authorities when deciding the seriousness of his injuries. Medical reports are relevant consideration when deciding if action of violence were severe enough to be qualified as “torture”.

DISCUSSION

The Director’s Decision

15.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 Ordinance 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.”

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

The Board’s Decision

17.The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer had explained it to him. His friend had assisted him with the Hearing Bundle and the Board’s Decision.

18.I explained the Board’s findings above to him and asked if he had any comments. He said that he had no comments on them.

19.It is quite obvious that the Board had accepted some fundamental facts of his case, but rejected the important parts which supported his case. It had set out the reasons in its Decision. The applicant has no comments on the reasons.

20.There are issues which are mixtures of facts and law. Having considered the Board’s Decision with rigorous examination and anxious scrutiny, I find nothing amiss in its Decision.

21.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].

22.Grounds (1) to (5) and (7) are his opinions. It is obvious that the Director had taken into consideration of the COI and he was entitled to come to his own decision as to what weight to be given to the evidence. The fact that the applicant takes a different view cannot render his conclusion unreasonable or wrong.

23.Ground (6) fails as the applicant does not have an absolute right of free legal representation at every stage of the proceedings. He has already had free legal representation at the screening stage. Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22.

24.Ground (8) fails too because the Adjudicator has no duty to give him the advice as he said. He may give evidence of his injuries at the hearing. In fact, the Board did not make much finding in his injury. It took the view that his alleged risks were empty threats by his uncle and his relatives. They are not real risks.

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

CONCLUSION

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

Dated the 25^th day of October 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