Case Document

100%Judiciary

HCAL 1961/2018

[2019] HKCFI 2992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1961 of 2018

BETWEEN

	Mehmood Qaiser	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and oral submission 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:

THE APPLICATION

1.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if the applicant had a fair screening before the Immigration office and the Board and if there are any further grounds in support of the application. In response to the Court’s letter, the applicant appeared before this Court.

2.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

3.The applicant is a Pakistani national. He arrived in Hong Kong on 7 February 2016 and was arrested by police on 8 February 2016. On 10 February 2016, he raised a non‑refoulement claim.

4.He claimed that if he was refouled to Pakistan, he would be ill-treated or even killed by (i) Khalid Mehmood (“Khalid”), ex-husband of his paternal cousin named Safina Begum (“Safina”), and his accomplices as he witnessed the crime they committed and (ii) his three paternal cousins since he and his father had a land dispute with them.

5.The incident took place when Khalid and Safina had a quarrel and their respective family members joined in. In the course of quarrel, Khalid fired a gun and killed the applicant’s cousin, Rafaqat Hussain and others were injured. A warrant was issued for the arrest of Khalid and his accomplices. Khalid is still at large whilst his other accomplices were arrested, convicted and sentenced. Khalid had warned the applicant not to give evidence in court. He had been looking for the applicant.

6.There was a dispute between the applicant’s father and his other cousins over a piece of land inherited from the applicant’s grandfather. His cousins brought with them other people to occupy the piece of land and they had had a fight. The applicant was injured with a wound on his chin. He did not report to police as he knew that his cousins were connected with the ruling party. After the fight, the applicant moved to other places to stay. His father arranged an agent to get him out of the country and he came to Hong Kong. He said that his wife told him that his cousin had threatened to kill him if he returned.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 21 December 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was unsubstantiated.

The Board

9.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 22 June 2018.

10.By Decision dated 3 September 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence. It did not reject his evidence wholesale and found the facts below.

1. It did not accept that Khalid would harm him, fearing that he would be a witness against him [40]

2. It did not accept that his cousin would harm or kill him if he returned to Pakistan [43].

3. The option of relocation was open to him and it would not be harsh for him to relocate to another part of Pakistan [50].

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

13.In his affirmation in support of his application dated 18 September 2018, the applicant relied upon the grounds below.

1. No reasonable basis to question his credibility;

2. Failure to consider the extended form of acquiescence.

3. Irregularity – the decision-maker being a different person other the interviewing officer.

4. Procedural impropriety/unfairness (failure to investigate into the Country of Origin Information of Pakistan.

5. Irrationality (failure to place weight on relevant information and/or selectively placing weight on irrelevant information).

6. Irregularity (failure to consider a consistent system of human right violations.

7. Irrationality (failure to consider if state protection exists in Pakistan).

8. Irrationality (placing weight on irrelevant matters or on inaccurate or incorrect facts.)

9. Procedural impropriety (failure to call for psychological and psychiatric reports and/or evaluations).

10. Procedural impropriety (apply the incorrect standard of proof).

DISCUSSION

The Board’s Decision

14.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 to him. His friend had assisted him with the Hearing Bundle and the Board’s Decision.

15.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, but he did not agree with the Board.

16.It is quite obvious that the Board did not accept the important facts in support of his claim. Therefore, he had no factual basis for his claim. Those grounds above are quite irrelevant because they are his opinions without any evidence in support of them.

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

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

CONCLUSION

19.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 11^th day of December 2019

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 11/12/2019 Mehmood Qaiser Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 11/12/2019 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9734/18/1/7/P1878 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)