Hussain Babar v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL1008/2018

[2020] HKCFI 1212

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1008 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”).

The applicant

2.The applicant is a Pakistani national.  He arrived in Hong Kong on 26 February 2011 as a dependent of his step-father and was allowed to stay until 1 March 2018.  During this period of time, he had committed a number of offences and was sentenced to imprisonment.  On 16 August 2017, he was released from prison and was transferred to the Immigration Department.  A deportation order was issued against him.  He lodged a non‑refoulement on 15 November 2017.

3.In his statements given to the Director and the Board, he said that he had a piece of land in Pakistani, which was left unattended and was therefore occupied by a group of gangsters.  They claimed to be associated with the Pakistan Muslim League.  They offered to buy his piece of land at a low price, which the applicant refused to accept.  Subsequently, he was ambushed and he heard gun shots.  He recognized the people.  They were the gangsters.  He reported the matter to police.  The police asked him to settle the matter himself.  He received unidentified calls. He was so scare that he came to Hong Kong.

The Director’s Decision

4.The Director considered his application in relation to the following risks:

a.     risk of torture under Part VII C 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”).

5.By Notice of Decision dated 14 February 2018 (“the Director’s Decision”), the Director rejected his claim for the reason that it was unsubstantiated. 

The Board

6.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 8 May 2018.

7.By Decision dated 23 May 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

8.The Adjudicator stated in the Board’s Decision that the applicant refused to answer her questions for clarifying his answers given to the Director despite her warning that she might draw adverse inference for his uncooperative attitude [10].  She assessed his evidence given to the Director and found:

“25. Taking his evidence in its entirety, I find that the Appellant’s evidence is not acceptable for lacking details and its internal inconsistencies. …”

9.By Form 86 filed on 4 June 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 Decision and the Board’s Decision.

10.In his affirmation in support of his application filed on 4 June 2018, the applicant relied upon the grounds below:

(1)     the Director failed to maintain high standard of fairness and her conduct was Wednesbury unreasonable;

(2)     the Director failed to consider the issue of state acquiescence;

(3)     the Director had not considered collusion between the police and the high ups of political circles and the misconduct of the police officials;

(4)     the Director failed to give sufficient weight to the Country of Origin Information (“COI”) which supported the applicant’s case;

(5)     the Director elected to adopt COI which suited his pre-conceived conclusion, which is unfair to the applicant;

(6)     the Director failed to appreciate that corruption and incompetency of the administration in the applicant’s country;

(7)     the Adjudicator failed to make sufficient enquiry before making the determination;

(8)     the Adjudicator was wrong to demand evidence from the applicant because the applicant was being kept in the detention centre; and

(9)     the Adjudicator failed to give sufficient chance to the applicant to arrange relevant evidence to support the claim.

DISCUSSION

The Direction’s Decision

11.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision 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 Decision and this Board has wider power than this Court to make investigations into the matter.  The Board had heard his appeal and made its Decision.

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

13.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

14.The applicant appeared before me.  He confirmed that he had had a fair hearing before the Board.

15.I read out the Adjudicator’s comments to him and asked him to comment.  He said that he had no comments.

16.In the circumstances, it seems that all his grounds above are quite irrelevant.  They are simply his comments without any evidence in support.  He had elected to refuse to cooperate with the Adjudicator himself.  It is unreasonable for him to make such comments on the Adjudicator.

17.As to ground (8), the Adjudicator was entitled to ask him to prove his case.

18.The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

19.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 17^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