Asghar Ibrar v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

Case No.HCAL 1896/2018[2020] HKCFI 1205

Court

High Court CFI

Date16 Jun 2020

Judge—

Case Document

100%Judiciary

HCAL 1896/2018

[2020] HKCFI 1205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1896 of 2018

BETWEEN

	Asghar Ibrar	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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.This is the applicant’s application for leave to apply for judicial review of the Decision dated 9 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

The applicant

2.The applicant is a Pakistani national. He came to Hong Kong on 18 February 2015, but he was denied entry by the Immigration Department. He lodged a non-refoulement claim on the same day.

3.He claimed that if refouled, he would be harmed or even killed by the Pakistan Muslim League–N (“PML-N”) members called Tariq and Nomi because he refused to join them.

4.In June 2014, Tariq and Nomi invited him to join PML-N. He refused. Between August 2014 and January 2015, he was assaulted by Nomi and his people four times. They used sticks to beat him for some ten to fifteen minutes. He had suffered bruises all over his body and had to take painkillers. He had been to two police stations to make complaints. But the police officers took no action. One of the police officers had even slapped his face and told him to leave. He moved to live in his uncle’s home in order to avoid Nomi and his people. However, they found him. He decided to leave Pakistan for Hong Kong.

The Director’s Decisions

5.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”).

6.By Notice of Decision dated 17 June 2015, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk as alleged by him if he returned to Pakistan was low [14]; that state protection was available to him [23] and internal relocation was an option open to him [26]. By Notice of Further Decision dated 19 December 2017, the Director found that his claim under BOR2 risk was not established.

The Board’s Decision

7.The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 23 May 2018.

8.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.

9.The Board considered the applicant’s evidence and found that his evidence was riddled with inconsistencies and deficiencies. It did not accept that he was ever threatened or assaulted or that he came to Hong Kong due to a fear for his life and safety [64]. It concluded that the applicant failed to prove the primary facts and that it was not prepared to give credence to any material facts in his evidence and there was no factual basis to support any of the applicable grounds [65]. See also §41-63 of the Board’s Decision for detailed analysis.

10.The Board had also considered that internal relocation was an option open to him [105].

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 10 September 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his statement of 22 pages attached to Form 86, he set out the grounds in support of his application, which I shall summarize below.

1. The Board had unlawfully fettered its discretion by refusing his appeal and it was unfair for the Board not to place credibility to his evidence.

2. Procedural impropriety/unfairness – failing to carry out sufficient research and inquiry into the Country of Origin Information (“COI”) on updated materials such as the USHR 2010, USRF 2010 and The International Commission of Jurists (“ICJ”) “Report on the ICJ Mission to Pakistan” Autumn 2011and just relying on outdated materials; failed to obtain requisite documents in support of his case; failing to provide the hearing bundle on time with translation, making him confused at the hearing; failing to give screening for the BOR 2 risk assessment by an immigration officer; and failing to provide legal representation or service to him or giving greater care to a self-represented claimant.

3. Irrationality – cherry-picking COI and relying upon outdated materials; failing to find fact whether there was a consistent pattern of gross, flagrant of mass violation of human rights; failing to assess state protection; failing to consider relevant information or considered irrelevant information to his prejudice.

DISCUSSION

13.This Board’s Decision is the second one, the previous one dated 31 December 2015 having been set aside by the Court on 6 December 2016 in judicial review. The Court remitted the matter to the Board for re-consideration by another Adjudicator. The reason for the Court to set aside the Board’s Decision dated 31 December 2015 was that the Board had not made further inquiry before it refused to extend time for the applicant to file his Notice of Appeal.

14.The applicant appeared before me. He confirmed that he was treated fairly when he appeared before the immigration officer and the Adjudicator of the Board. The duty lawyer had explained the Director’s Decision to him. His friend had explained the Board’s Decision to him. He had no comments on the Board’s findings.

15.The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.

16.The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.

17.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

18.The grounds above are either his opinions without any evidence in support of them or irrelevant to the Board’s finding. The Board found that he had no factual basis in support of his claim, which is a finding of the facts of the case. It is also not right to say that BOR 2 risk was not assessed by the Immigration Department as the Director had assessed this risk in his Further Decision dated 19 December 2017.

19.There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

20.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

21.I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.

Dated the 16^th day of June 2020

	(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 16/6/2020 Asghar Ibrar 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 16/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 1883/15/7/67/P544 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 443/15 & RBCZ/9001738/16 (formerly RBCZ/132/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)