Hanif Waqar v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1836/2018

[2020] HKCFI 1539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1836 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 of the Decision dated 22 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office.

2.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, 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 17 September 2019.

3.Leave was granted to the applicant to name the Torture Claims Appeal Board as the respondent and the Director of Immigration as the interested party.

The applicant

4.The applicant is a national of Pakistan. He came to Hong Kong from China Illegally on 21 September 2014. He was arrested by police on 30 April 2015 and was referred to the Immigration Department for investigation on 1 May 2015. He lodged his non‑refoulement on 2 May 2015.

5.He claimed that if refouled, he would be harmed or killed by Muhammad Ikhlaq (“Ikhlaq”) because of a land dispute between his family and Ikhlaq’s family and because he belonged to a party which was opposite to Ikhlaq’s party.

6.He told the Director and the Adjudicator that the land dispute was between his father and a cousin, Zamurrad Khan. Ikhlaq was the son of Khan. The land had been occupied by Khan. Ikhan was trying to threaten him to make his father transfer the land to Khan. He had cited two incidents, which made him leave Pakistan. One incident took place on 31 January 2010 where he and his other two cousins were shot by terrorists. His two cousins died in the hospital. He was shot in both of his legs. He was hospitalized. Later, he learned that the terrorists were arranged by Ikhlaq. He had reported the matter to police, which refused to set up a file for this case. He believed it was because Ikhlaq was connected with those higher up in police. The next incident took place in June 2014 when he was riding his motorcycle, he was confronted at a deserted jungle by three people. He managed to drive away but was shot by some people who tried to stop him. He recognized that two of them were the terrorists. He decided to leave for Hong Kong.

The Director’s Decisions

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

a.torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

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”).

8.By Notice of Decision dated 31 July 2015 (“the Director’s Decision”) and Notice of Further Decision dated 26 May 2017 (“the Director’s Further Decision”) collectively called “the Director’s Decisions”, 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 Decisions. He attended a hearing before the Adjudicator on 11 August 2017 and 6 September 2017 respectively.

10.By Decision dated 22 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence. It came to the conclusions below.

a.The general credibility of the applicant was doubtful. He said that his father had the legal document to prove his title to the land. But he failed to produce the document to support his case [46].

b.The shooting incident on 31 January 2010 lacked credibility and it was inherently improbable as the Ikhlaq family had occupied the land [47].

c.The evidence that Ikhlaq arranged the shooting was double hearsay evidence [48].

d.Refusal of police to take up the report was speculative and inherently lacked credibility [49].

e.His evidence about the three terrorists’ court case was confusing and inconsistent [53].

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 4 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of this application, he said that his life remained in danger if he returned to Pakistan.

DISCUSSION

14.The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the Board. His lawyer had explained the Director’s Decisions to him. His friend had explained the Board’s Decision to him.

15.However, he said that the immigration officer told him to produce some documents to him. But when he produced those documents to the immigration officer, the immigration officer told him that he had already made his decision. Upon questions from me, he said that he did not complain this to the duty lawyer. Nor did he complain to the Board. He was unable to explain why he did not do so. He did not put this issue in his affirmation in support of this application. I will not take this issue into consideration.

16.I put the Board’s findings to him and asked him if he had any comments. He said that he had no comments. But he maintained that he had told the Board the truth.

17.It is obvious that the Board rejected his evidence on the facts of the claim. He has no factual basis in support of his claim. He was unable to identify what errors the Board had committed in coming to its decisions.

18.The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 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.

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

CONCLUSION

20.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 13^th day of July 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