Rizwan Baig v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL 2804/2018

[2019] HKCFI 2833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2804 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”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is a Pakistani national. He arrived in Hong Kong on 9 June 2011 illegally through China. He was arrested by police on 10 June 2011. He lodged a torture claim on 14 June 2011. His application was rejected by the Director on 18 November 2011. His appeal was rejected too on 6 December 2011.

3.His reason for his application is that if he was refouled to India, he would be harmed or killed by Mr Imtiaz Baig (“Imtiaz”).

4.In his statements given to the Director and the Board, he claimed that he had a girlfriend named Lubna. Her father is Imtiaz. They are of different classes, Lubna being rich and he an ordinary person. Imtiaz objected to their relationship. For reasons that he did not know, Imtiaz had murdered Lubna and he threatened to kill the applicant as well.

The Director’s Decision

5.He had made a torture claim similar to that under Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”) and he was rejected. His appeal was rejected too on 6 December 2011. The Director therefore considered his application only in relation to the following risks:

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 under RC”).

6.By Notice of Decision dated 27 March 2018 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated. The Director found that there were no substantial grounds to believe that he would be in danger of being harmed and killed by Imtiaz upon his return to Pakistan [18]; that state protection was available to him [22] and that internal relocation was an option open to him [23].

The Board’s Decision

7.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 9 July 2018 and 20 July 2018 respectively.

8.By Decision dated 26 November 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case. It found that, for reasons as set out in §§114‑120 of the Board’s Decision, it did not accept the facts as alleged by the applicant in support of his claim [113]. Apart from the implausibility of the facts as alleged by the applicant, the Adjudicator had also taken into consideration his dishonesty in that he sneaked into Hong Kong illegally. He told the Immigration officer that he sneaked into Hong Kong by boat. However, he told the Adjudicator that he arrived in Hong Kong by climbing the border fence. According to the Immigration Record, he told the police officers when he was arrested that he came to Hong Kong to find a job. But the applicant denied he had spoken those words [120].

10.In his Form 86 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision respectively.

11.In his affirmation in support of his application dated 7 December 2018, the applicant relied upon the following grounds:

1. the Director’s Decision was unfair as he adopted a uniformed and biased approach rejecting his claim without considering his evidence in relation to state protection;

2. he was not provided with language assistance and the Hearing Bundle was without translation;

3. he was not provided with legal assistance for this application;

4. the Board was unreasonable to reject his evidence with the documents in support; it having not applied the principle that it only excludes evidence which it had no doubt that they did not occur;

5. the Director did not make a full research, but was only adopting a uniform approach, cherry picking the Country of Origin Information (“COI”) without giving reasons as to why he preferred the COI not beneficial to his case; and

6. the Board failed to make a proper search as evidenced by the Board quoting information from Wikipedia as authority.

DISCUSSION

The Director’s Decision

12.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.”

13.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

14.The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. His lawyer had explained the Director’s Decision. His wife had assisted him with the Hearing Bundle and the Board’s Decision.

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

16.It is obvious that as the Board rejected all of his evidence on the salient facts in support of his case, setting out the full reasons for his decision.  He has no factual basis in support of his claim.

17.He does not have the absolute right of free legal representation at every stage of the proceedings as he had already had legal representation at the screening stage. Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22. Ground (3) fails.

18.The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14

“13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….

14.     Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

19.Grounds (1) and (4) and (5) fail as they are the applicant’s opinions without any evidence or particulars to support them. Ground (2) fails as the Court of Appeal in Re. Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review. Ground (3) fails as the Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 at §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage. Ground (6) is irrelevant as the Board discredited his evidence on the facts of his case, the research is quite irrelevant to the finding of the facts of his case.

20.The applicant fails to show that he has a 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 the judicial review. Accordingly, I dismiss his application.

Dated the 21^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