Ahmad Raza v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL908/2018

[2020] HKCFI 74

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 908 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 an application taken out by the applicant pursuant to Order 53, rule 3 (2) of the Rules of the High Court (“RHC”) for judicial review of the decisions of the Director of Immigration (“the Director”) and the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) respectively.

2.The applicant requested a hearing.  The hearing was fixed at 10:00 am on 22 November 2018.  However, the applicant was absent on that day.

3.By an Order dated 22 November 2018, this Court dismissed his application for want of prosecution.

4.The applicant failed to take out an application for leave to appeal against the said Order to the Court of Appeal within time.  Pursuant to Order 59, rule 2B(1) RHC, the applicant filed a summons dated 30 November 2018 to seek leave to appeal against the said Order to the Court of Appeal out of time.

5.On 30 November 2018, the applicant filed an affirmation in which he said that he did not received the notice from this Court. However, he was unable to give the reason why he did not receive the notice. But the fact that he pursued this matter demonstrated that he was serious about this matter. He affirmed this in evidence in the court.

6.I am satisfied with his explanation for his absence on 22 November 2018.

7.Under Order 32, rule 6 of the RHC, this Court has the jurisdiction to set aside an order made ex parte.  Pursuant to Order 1A, rule 1 and Order 1B, rule 1(2)(l) of the RHC, I shall now treat the applicant’s application as an application to set aside the order which I made on 22 November 2018 dismissing his application.  The said order is now set aside.

8.I shall now consider the applicant’s application for leave to apply for judicial review of the Director’s Decision and the Board’s Decision.

The applicant

9.The applicant is a Pakistani national, who came to Hong Kong through China illegally on 30 July 2015. On 6 August 2015, he was arrested by police. On 8 August 2015, he lodged his torture claim to the Director.

The grounds of non-refoulement protection

10.The applicant claimed that if he was refouled to Pakistan, he will be subjected to ill‑treatment to be inflicted by his two cousins Atiq and Sohail as well as their friend Qazafi and/or their gang for the reason of a dispute over a piece of land.

The Director’s Decision

11.The Director assessed his application on the following risks^[1]:

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. 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”).

12.By Notice of Decision dated 8 June 2017 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim on all the above grounds for not being substantiated.

The Board’s Decision

13.The applicant appealed to the Board and on 6 December 2017, the applicant attended a hearing before the Adjudicator.

14.At paragraph 39 of the Board’s Decision, the Adjudicator recorded that through the hearing, the applicant admitted that all he said in his Non-refoulement Form about his risks of torture was untrue. He made up those stories in order to stay in Hong Kong, the purpose of which is to earn money for the family in Pakistan. She therefore rejected the applicant’s evidence in support of his claim.

15.By Decision dated 14 March 2018 (“the Board’s Decision”), the Board refused the applicant’s appeal and confirmed the Director’s Decision.

16.Since the Adjudicator rejected the applicant’s evidence in support of his claim, there is no factual basis in support of the applicant’s application for non‑refoulement.

Application for leave to apply for judicial review

17.By Form 86 dated 23 May 2018, under Order 53, rule 3(2) RHC, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision.

18.The applicant has filed his affirmation in support of his application, in which he set out the grounds as follows:

1. the Board’s Decision was not translated to him;

2. he was under stress at the hearing.

DISCUSSION

The Director’s Decision

19.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances.  In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board has wider power than this Court to make investigations in the matter. His appeal against the Director’s Decision had been heard and the Board had made its Decision.

20.Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine. 

21.For the reasons above, I dismiss the applicant’s application for leave to apply for judicial review of the Director’s Decision.

The Board’s Decision

22.On request, a hearing was fixed for the applicant. He confirmed that he had admitted that he came to Hong Kong for making money to the Adjudicator. He further confirmed that what he said was true.

23.In the circumstances, there is simply no factual basis for his application for non‑refoulement claim.

24.I find that he is unable to show that there is any reasonable chance that his judicial review will succeed.

CONCLUSION

25.For the reasons above, I find that the applicant’s application for judicial review has no reasonable chance of success. Accordingly, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application.

Dated 3^rd day of January 2020

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

[1] See §§3 & 4 of the Notice of Decision of the Director