Waqar Ahmed Khan Alias Qureshi Mobwen v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 98/2020

[2023] HKCFI 2568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 98 of 2020

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 present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Notice of Decision Request for making a subsequent claim dated 16 March 2018 of the Director of Immigration, refusing his application for a subsequent claim (“the Director’s Decision on Subsequent Claim”).

2.The applicant had made his previous claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”) by a letter dated 5 October 2009 on the ground that he would be in danger of being subjected to torture in Pakistan if he returns there. By Notice of Determination dated 22 March 2011, the Director rejected his application (“the Director’s First Decision”).

3.The applicant did not appeal against the Director’s First Decision. Instead, he applied to the Director for a subsequent claim.

4.The applicant had appeared before the Court on 19 July 2023 and 6 September 2023.

The previous claim

5.The applicant is a national of Pakistan. Between 1992 to 2000, the applicant came to Hong Kong and was repatriated to Pakistan 5 times. The last time he came to Hong Kong illegally was on May 2009. He was arrested by police for theft on 28 June 2009. He was convicted of the offence of Breach of deportation order, theft and remaining in Hong Kong without the authority of the Director of Immigration and was sentenced to 24 months’ imprisonment. He lodged his previous claim when he was being detained in prison.

6.Briefly, the applicant’s parents opened a newspaper called Pak Sar Zameen and the applicant was a journalist. In 1991, the applicant reported corruption of Mr Farooq in the election of presidency. Mr Farooq sent 5 or 6 people to the newspaper and warned the applicant not to report the matter. They attempted to kidnap the applicant and his father. But the applicant put up a struggle and a crowd gathered outside the newspaper. The men fled. In 2001, the applicant was kidnapped by the same people in the first kidnap. He was taken to a flat. He managed to free himself and he went to live in his brother’s premises before coming to Hong Kong. He did not report this matter to police because he knew that it would be useless. Also, the applicant claimed that there was a land dispute between his family and Mr. Farooq. Between 1991 to 2000, he had been to Hong Kong many times. But he had never sought protection from the Hong Kong Government. His explanation was that he did not know how to apply and he did not have the document. His explanation was not acceptable to the immigration officer. As a result, the immigration officer was not satisfied that he was able to establish his claim under the Convention. His previous claim was therefore rejected by the Director’s First Decision.

The subsequent claim

7.By written representations respectively dated 22 January 2018 and 6 February2018, the applicant stated that he would like to apply for subsequent claim of his non-refoulement protection because his life is still under threat.

8.Upon request, the applicant by letter dated 4 March 2018 provided additional information in support of his application to the Director. He claimed:

(1)  He was last deported back to Pakistan on 29 December 2011 (30 December 2011 per the Immigration Department’s record): upon his arrival in Lahore city, he was attacked by armed men wearing mask (the “Attack”).

(2)  He was injured on his skull which made him become unconscious for one day. After the attack, he got 8 stitches and a bandage on his head. His right eye was also severely bruised; marks are still visible on his head. His right leg was also severely bruised; marks are still visible on his leg and his head. Besides, he had 2 family friends who died during the Attack.

(3)  After then, his friends smuggled him out of the country to China.

9.Having considered the additional information, the immigration officer was of the view that there was no evidence to show that those armed men who had attacked the applicant were the men belong to Mr Farooq. Besides, he had stopped journalism for 12 years, it would be unlikely for Mr Farooq to take the matter further to take revenge upon him. According to the country of origin information(“COI”), Mr Farooq resigned from Pakistan presidency on 2 December 1997 and had already died on 19 October 2010. As to the alleged land dispute, the Court had given judgment in favour of the applicant’s family.

10.The immigration officer did not accept that there has been a significant change of circumstances, which taken together with his previous claim. the applicant would have realistic prospect of success of his subsequent claim.

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

11.The applicant has filed Form 86 dated 9 January 2020 for leave to apply for judicial review of the Director’s Decision on Subsequent Claim. He had also sent a letter to the Court, in which he repeated what he said in his affirmation below.

12.In support of his application, the applicant filed an affirmation, in which he said that he is a genuine non-refoulement claimant and he faces all the dangerous problems, harassment and torture in his country; that he is unable to find any place to stay safely in his country; that he considers that the Director was wrong in his decisions as he had not gone to his country to understand the real situation himself; that if he had not escaped, he would have been killed by his enemies.

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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The Court will bear in mind that the Director’s Decision on subsequent claim should be examined with rigorous examination and anxious scrutiny. Before me, the applicant agreed that he relied upon the same reasons in his previous claim in support of his subsequent claim and he had nothing further to say.

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 Director had, for the reasons given in paragraph 9, rejected the applicant’s evidence on the facts in support of his subsequent claim. His reasons under paragraph 12 do not assist his application. It is only his bare assertion that the Director’s decisions are wrong. The immigration officer can rely upon the COI instead of going to his country to understand the situation there. There is no substance that can validly challenge the Director’s Decision on Subsequent Claim.

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

CONCLUSION

18.I refuse to grant leave to the applicant to apply for judicial review of the Director’s Decision on subsequent claim. Accordingly, I dismiss his application.

Dated the 19^th day of October 2023

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