Mehmood Qasir v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2388/2018

[2020] HKCFI 1008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2388 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 did not attend the hearing on 9 August 2019. I shall deal with his application on the paper.

2.I have identified the following defects in Form 86 for his application:

a.     the description for the respondent was wrong; and

b.     wrong description of the Board’s decision for his relief.

3.Pursuant to the powers under O.53, r.3(6) and O.20, r.8, RHC, on my own motion, I amend Form 86 by:

a.     Deleting the wrong description and adding the Board as the respondent (O.20, r.8);

b.     deleting the wrong information and adding the relief of leave to apply for judicial review of the Board’s Decision dated 2 October 2018 (O.53, r.3(6)).

The applicant

4.The applicant is a Pakistani national. He came to Hong Kong illegally on 28 December 2012. On 4 February 2013, he was arrested by police and referred to the Immigration Department for investigation. On 9 February 2013, he lodged a torture claim under Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”). His claim was rejected by the Director of Immigration (“the Director”) by Notice of Decision dated 27 June 2013. He appealed to the Torture Claims Appeal Board (“the Board”) on 9 July 2013 and his appeal was dismissed by the Board on 11 February 2014. He did not apply for leave for judicial review of this Board’s decision. By written representation of 5 July 2013, he lodged his non-refoulement claim.

5.In support of his claim, he said that if refouled, he would be harmed or killed by Chodhry Tariq Farooq and his followers or supporters of the Pakistan Muslim League-N (“PMLN”) because he was a supporter of their rival party, Pakistan Peoples Party.

6.He had raised two incidents in support of his claim. The first incident was in 2011 where he helped at polling station for the election. Shortly after the election, he was approached by the gangsters of PMLN, threatening him, punching and slapping him several times causing bruises on his body and face. The second incident was that he was threatened by the gangsters to be thrown into the river. He had to move to other places to avoid them. He finally came to Hong Kong.

The Director’s Decision

7.The Director did not consider his torture claim which had been dealt with previously. He considered his application 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”).

8.By Notice of Decision dated 27 February 2018, the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 25 June 2018.

10.By Decision dated 2 October 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision came to the conclusion below.

a.     The applicant failed to establish, by evidence, that state protection was not available to him. He simply had not attempted to seek state protection [152].

b.     The applicant had not described any injuries or harm suffered by him. The fight was soon stopped by senior people [153].

c.     There was no evidence that the state was involved [155].

d.     There was no real risk that the applicant would experience if he is returned to Pakistan [157].

e.     Internal relocation was an option open to him [173].

f.     The applicant was not qualified to claim protection of persecution [174].

g.     The applicant was not qualified to claim BOR 2 risk protection [187].

Application for leave to apply for judicial review

12.He filed Form 86 dated 29 October 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation, he simply said that the Director did not understand his situation.

DISCUSSION

14.The applicant did not appear before me on the date of hearing. I was unable to obtain further information or submissions from him personally.

15.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. There is no evidence to show that the Board had committed any error in coming to its decision.

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

CONCLUSION

17.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 2^nd day of June 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