Ihsan Ul Haq v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1563/2018

[2020] HKCFI 192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1563 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.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 (“RHC”), 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 there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 19 July 2019.

The applicant

2.The applicant is a Pakistani national. He had previously come to Hong Kong in 2002 and made a torture claim protection in 2006. However, in November 2012, he withdrew his application and returned to Pakistan. On 1 May 2015 he came illegally from China. He surrendered himself to the Immigration Department on 6 May 2015. On 16 September 2015, he lodged his non-refoulement claim with the Director.

3.In support of his claim, he said that if refouled, he would be harmed or killed by the Pakistan Muslim League-Nawaz (“PML-N”) supporters and the police.

4.He and family were supporters of the Pakistan People’s Party (“PPP”), a rival party to PML-N. Between 1998 to 2002, because he and his brothers confronted with PML-N supporters for faking votes at their local polling station in 1998, they were involved in fights disputes. The followings are a summary of the events:

a. he was injured and had to be hospitalized in 1998;

b. PML-N members reported to police and the police framed him up with various charges of robbery, dangerous drugs and weapons;

c. he was detained in police station and tortured by beatings, electric shock and being burnt with cigarettes;

d. he appealed to the Anti-Corruption Department but they took no action;

e. one of his brothers was arrested on false charge and jailed for two years in 2002;

f. they set fire on his family’s house and made false report to police that he and his brothers fought with them;

g. the police had arrested him and tortured him and they also arrested his four brothers and detained them for five days, torture them and charged them with false charges;

h. one of his enemies shot at his house and killed his mother in law; and

i. he had to move to places to avoid them and he finally came to Hong Kong.

The Director’s Decision

5.The Director first 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. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture 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”).

6.By Notice of Decision dated 22 November 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

7.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 21 March 2018.

8.By Decision dated 27 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s evidence and came to a conclusion that the applicant was not a reliable witness and it rejected the facts as alleged by him in support of his claim. It further found that there was not a real risk that he would face any of the proscribed forms of harm if he returned to Pakistan [71-76] Below are its reasons for its conclusion.

a. There were significant inconsistencies between his evidence given to the Director and before the Board in relation to his dispute with his enemies [46].

b. There were also inconsistences and omissions in his evidence on the dispute between his family and his enemies [48].

c. The evidence in relation to his mother-in-law’s death was inconsistent [51].

d. The evidence on the 2008 attack was vague and undetailed [54].

e. He tried to explain such discrepancies by saying that he was mentally unstable. But he did not have any medical evidence to prove that [57].

f. His evidence on the alleged police action against him and his brothers was confusing and unclear [62].

Application for leave to apply for judicial review

10.He filed Form 86 for leave to apply for judicial review of the Board’s Decision.

11.In his affidavit, he said that his life was still in danger if he returned to Pakistan and his wife had been killed.

DISCUSSION

12.It is quite clear that the Board rejected all his facts in support of his claim. His application therefore has no factual basis.

13.He has raised no valid ground to challenge the Board’s Decision. There is no proof that his mother-in-law was killed by his enemies.

14.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. However, there is no evidence to show that the Board has committed any error in reaching its decision.

15.The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

16.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 15^th 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