Ali Umair v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

Case No.HCAL 2295/2018[2022] HKCFI 2994

Court

High Court CFI

Date30 Sep 2022

Judge—

Case Document

100%Judiciary

HCAL 2295/2018

[2022] HKCFI 2994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2295 of 2018

BETWEEN
	Ali Umair	Applicant
	and
	Torture Claims Appeal Board/	Putative Respondent
	Non-refoulement Claims Petition Office
	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 Applicant being absent 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.The applicant applies for leave to apply for judicial review of the Decision dated 11 October 2018, which is the Decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application is therefore dealt with on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Pakistan. He entered Hong Kong illegally on 12 May 2015 and was arrested by the police for being an illegal immigrant on 11 July 2015. On 13 July 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by some suspected terrorists.

5.According to the applicant, in mid or late February 2014, he and his cousin noticed that some unknown persons moved into his home town. Two weeks later, he saw that the men were carrying pistols and suspected that they were involved with the terrorists group which some of the terrorists were arrested before near his city. The applicant and his cousin reported them to the police. The next day, the unknown men disappeared. In early March 2015, the applicant found out that he was tailed by some men and they attempted to shoot him. While the applicant escaped the shooting incident without sustaining any injuries, his cousin was killed at the scene. Thereafter, he fled to another village before eventually coming to Hong Kong for protection. Details of his claim are set out at paragraph 8 of the Notice of Decision dated 29 November 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that the level of risk of harm upon his refoulement was assessed to be low. In elaboration, the Director found that (i) the alleged terrorists were based on the applicant’s suspicion without any cogent evidence and the absence of ill-treatments indicated an unlikelihood of future risk of harm. In addition, his alleged risk of harm from the terrorists, in any, was localized [14]; (ii) state protection would be available to him [15]-[20.1]; and (iii) internal relocation was a viable alternative [21]-[23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 27 August 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [4].

9.The Board considered the available information and the applicant’s oral evidence [33]-[41]. It considered that the inconsistences in the applicant’s evidence undermined his credibility [45]. The Board first noted that the FIR provided by the applicant as to the police report was about the shooting incident, instead of the one about the suspected terrorists claimed by the applicant [46]. It then observed that the applicant’s evidence about the alleged terrorists lacked details [47]-[48]. The Board concluded that the applicant’s assertion about being attacked by the terrorists was implausible [49]. Meanwhile, the Board did not accept the FIR submitted by the applicant as it was not genuine [50]-[51]. Even taking the applicant’s claim to the highest, the Board found that the country of origin information stated that anti-terror operations were on-going in Pakistan and thus the applicant could obtain assistances from the authorities [52]-[60].

10.For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 22 October 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant had set out a jumble of materials, many of which are quite irrelevant to his case. I shall summarize the relevant grounds below.

(1)  No reasonable basis for rejecting his evidence.

(2)  Failure of considering the extended form of state acquiescence; failure of considering the country of information (“COI”).

(3)  Procedural impropriety and irregularity: failure to investigate the COI; failing to consider state protection in Pakistan; failing to call for psychological or psychiatric report; applying wrong standard of proof; different decisions maker, i.e. the immigration and the adjudicator; no proper basis for consideration of internal relocation; no provision of legal assistance for his appeal; the adjudicator failed to consider the relevant evidence.

(4)  Irrationality: selectively placing weight on relevant materials and irrelevant materials; failing to consider a consistent system of human right violations; failing to apply the high standards of fairness.

(5)  Error in law.

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.The Board has given its reasons for the Board’s Decision. Those grounds in paragraph 12 above are a jumble of discursive reasons, which the applicant might have borrowed from other cases not relevant to his application. I shall address some of the issues which are of substance. The others are his bare assertions and opinions without any evidence in support. My conclusion is that they are not valid reasons to challenge the Board’s Decision.

17.On the issue of there are two different persons, one being the immigration officer and the other being the adjudicator to make decisions, this is the procedure under the law. The immigration officer is the primary facts finder whereas the adjudicator acted as the supervisor and secondary fact finder on re-hearing of the case. There is nothing amiss in this procedure.

18.On the issue of no legal assistance for his appeal, the Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

19.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

21.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 30^th day of September 2022

(M.O.WONG)(Ms)
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 30 September 2022 Ali Umair 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 30 September 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9437/17/12/104/P1845 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2491/17 (Formerly RBCZ 12374/15)[T6 S135] Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)