Akhtar Junaid v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2950/2018

[2019] HKCFI 2709

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2950 of 2018

BETWEEN

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:

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”).

The applicant

2.The applicant is a Pakistani national. He arrived in Hong Kong on 10 June 2014 illegal from China. He was arrested by police on 24 June 2014. The next day, he was referred to the Immigration Department for further investigation. On 26 June, he lodged a non‑refoulement claim.

3.In his statements given to the Director of Immigration (“the Director”) and the Board, he said that if refouled, he would be harmed or killed because he was a supporter of the Pakistan Tehreek-e-Insaf (“PTI”).

4.He and his family were supporters of the Pakistan Muslim League (Noon) (“PMLN”) previously. They subsequently converted to be supporters of PTI instead. PMLN people kept on persuading him to support PMLN again. He refused. In late 2012, he was warned by PMLN people that he had to support their party. He refused too. Sometime later, he met them on the street. They pushed him hard on the ground. He suffered mild injury. Two days later, whilst he was riding a motorcycle going back to school, he saw a speeding car driven by the PMLN people past him. He fell on the ground and was injured with profuse bleeding on his right knee and right heel. About 1.5 months later, he was verbally threatened again. He felt danger around and moved to other places. 

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 under RC”).

6.By Notice of Decision dated 31 October 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

7.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 8 October 2018.

8.By Decision dated 12 November 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case and, having considered the inconsistencies between his evidence given to the Director and to the Board and the inherent implausibility of his evidence [64-75], it concluded:

“60. I found the evidence of the appellant to be wholly unreliable. …

64.     Having carefully considered all the information supplied, I find that the appellant has not made out a case in respect of the aforesaid grounds …”

10.On the above bases, the Board rejected all the alleged risks and refused his appeal.

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

12.In his affirmation in support of his application dated 21 December 2018, the applicant relied upon the grounds as follows:

1.  the Board had unlawfully fettered its decision by refusing his appeal;

2.  the Adjudicator acted in a procedurally unfair manner in dealing with his appeal: the hearing bundle was given to him shortly before the hearing without translation and he was confused in the hearing;

3.  the Board’s Decision was unreasonable or irrational: it relied upon the Country of Origin Information which were outdated and not officially recognized or simply hearsay; and

4.  the Board failed to meet greater care and duty owed to a self-represented claimant.

DISCUSSION

The Board’s Decision

13.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.

14.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.

15.It is quite obvious that, apart from some fundamental facts such as his nationality, the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim. Those grounds above are quite irrelevant.

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

17.The grounds (1), (3) and (4) are his opinions without any evidence in support of them.

18.Ground (2) is inconsistent with what he said in Court.

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

CONCLUSION

20.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 1^st day of November 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