Maqsood Paul v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 1504/2018

[2020] HKCFI 1019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1504 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”)

Is this application late?

2.It was brought to my attention that the Board’s Decision was dated 27 April 2018. The applicant filed his Form 86 Notice of application for leave for judicial review dated 27 July 2018 on 30 July 2018. On the face of it, the application is 3 days late.

3.However, the effect of the Board’s Decision should arise upon service of it. Practice Direction 19.2 provides that the computation of time of service in the ordinary course of post is “on the second working after posting”.^[1] The date of the Board’s Decision is 27 April 2018, which is Friday. Saturday and Sunday are not working days. Assuming posting of the Board’s Decision was on the same day, i.e. 27 April 2018, the second working day is 2 May 2018 because 1 May 2018 is a public holiday. Three months from 2 May 2018 will be 2 August 2018. The applicant’s application is therefore within three months from the date of the Board’s Decision.

The applicant

4.The applicant is a Pakistani national. He had previously overstayed in Hong Kong and was refouled to Pakistan on 19 February 2005. On 10 September 2011, he sought to enter Hong Kong but was refused permission to land. He was put under investigation. During the investigation, he lodged a torture claim on 9 September 2011 through his legal representative.

5.He claimed that if he was returned to Pakistan, he would be harmed or killed by the Muslims there.

6.He is a Christian. He had organized other Christian in Gujranwala where he lived to build a church. The Muslims opposed and attacked them. In 2006 Easter at a praying meeting, they were attacked by Muslims. He was wounded and one of the other Christians died in hospital. He moved to Sialkot with his relatives for a few months, but the Muslims also attacked him and fractured his leg. Finally, he came to Hong Kong.

The Director’s Decision

7.The applicant had made a torture claim protection, but the Director had rejected his application. The Director 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”);

c.     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”); and

d.     Article 15 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Right to freedom of thought, conscience and religion).

8.By Notice of Decision dated 17 June 2016 (“the Director’s Decision”) and Notice of Further Decision dated 6 September 2017 (“the Director’s Further Decision”), collectively called (“the Director’s Decisions”), the Director rejected his application for the reason that his non-refoulement claim was not substantiated.

The Board’s Decision

9.The applicant appealed to the Board. He attended a hearing before the Adjudicator on 13 November 2017.

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

11.The Adjudicator stated in the Board’s Decision:

“42. …It is for the appellant to provide reasonably coherent detailed and generally credible evidence suggestive of his own personal and lived experience. This appellant failed to do so.

48. I have rarely encountered a witness whose testimony was so vague, garbled, incoherent, inconsistent with what he previously said, inconsistent with documents he had himself presented and so manifestly lacking in credibility….

69. I have accepted that there may be some credence in the appellant’s claim that he is a Christian, but beyond that I am not prepared to go. He has failed to establish any of his other factual claims.”

The Adjudicator further found that the fact that the applicant was a Christian would not subject him to any risk of persecution as he was not a principal player of evangelical activities [71]; an ordinary Christian would not be subjected to such risk [72]; and even if he was subjected to discrimination, the applicant might have internal relocation [73].

Application for leave to apply for judicial review

12.By Form 86 filed on 30 July 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decisions and the Board’s Decision.

13.In his affirmation in support of his application dated on 27 July 2018, the applicant relied upon the grounds below:

1.     the Adjudicator had not carried out sufficient research and proper inquiry into the Country of Origin Information; and

2.     the Director had adopted a very uniformed approach for all non‑refoulement claims.

DISCUSSION

The Director’s Decisions

14.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 was created by the legislature, with wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.

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

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

The Board’s Decision

17.The applicant appeared before me. He confirmed that he considered that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator.

18.Grounds (1) and (2) are his personal opinion without any evidence to support. They fail.

19.It is clear that the Adjudicator had found that there was no factual basis in support of the applicant’s claim.

20.The applicant fails to show that he had any 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 4^th 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

[1] See paragraph 2(b)