Ahmed Naseer v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL2381/2018

[2020] HKCFI 1576

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2381 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. In 1997, 1999 and 2003, he had entered Hong Kong and stayed here illegally. He was arrested and sentenced to imprisonment and then sent back to Pakistan. In 2008, he sneaked into Hong Kong illegally again and was arrested. He was sentenced to 21 months’ imprisonment. On release, he was referred to the Immigration Department for further investigation. On 2 April 2013, he lodged a non-refoulement claim.

3.He claimed that if he was returned to Pakistan, he would be harmed or killed by Taliban.

4.He did not have any conflict with anyone in Pakistan and was not involved in any party. He guessed that Taliban would harm him because his father was in army before and he had worked near the border of Afghanistan. He had told his stories that he was attacked in Pakistan; his sister was killed and his mother was killed too. His father was able to look after himself.

The Director’s Decision

5.The Director had rejected his Torture risk before and therefore 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.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”).

6.By Notice of Decision dated 28 February 2018 (“the Director’s Decision”), the Director rejected his application for the reason that his non-refoulement claim was not substantiated.

The Board’s Decision

7.The applicant appealed to the Board. He attended a hearing on 31 July 2018.

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

9.Having considered the evidence, the Adjudicator stated in the Board’s Decision:

“111. For the above reasons, based on the gaps, inconsistencies and other problems with the evidence, having carefully assessed the Petitioner’s claims, the Adjudicator rejects them, both individually and cumulatively, in their entirety, except that his sister Farha may in fact have been charged with some ‘white collar offences’.”

Application for leave to apply for judicial review

10.By Form 86 dated 29 October 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.

11.In his affirmation in support of his application dated on 29 October 2018, the applicant did not state specific grounds in support of his application.

DISCUSSION

The Director’s Decision

12.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.

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

14.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

15.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.

16.I put to him the Adjudicator’s comment on the credibility of his evidence as per paragraph 111 of the Board’s Decision, the applicant said that he had no comments. The applicant has no factual basis in support of his case.

17.The applicant therefore fails to show that he had any reasonable chance of success in his proposed judicial review.

CONCLUSION

18.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 16^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