Qaisar Saleem v. Director of Immigration

HCAL 60/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 60 OF 2013

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D E C I S I O N

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Introduction

1.This application for leave to apply for judicial review concerns the applicant’s earlier petition to an adjudicator, whose powers were derived from Part VIIC, Immigration Ordinance (Cap 115).  In short, that part of Cap 115:

(a)   establishes a torture claims appeal board (“the appeal board”);

(b)  empowers the appeal board (through its adjudicators) to hear and determine appeals concerning claims for protection pursuant to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (respectively “CAT claims” and “the Convention”).

2.In a written decision dated 21 September 2012 (“the said decision”), the adjudicator dismissed the applicant’s CAT claim.  In his home-made Form 86, the applicant asks for leave to apply for judicial review in essence:

(1)  to have the said decision brought up to be quashed;

(2)  to have the Director of Immigration’s earlier decision (rejecting his claim for non-refoulment) brought up to be quashed.

3.The Court of Final Appeal handed down its decision in C v Director of Immigration and Another FACV 18 to 20/2011 (on 25 March 2013).  Certain observations were made regarding the Director’s duty to assess a refugee claim before exercising his powers of removal against a refugee claimant.  Because of those observations, I invited the putative respondent to attend the oral hearing of this application.  This aspect will be mentioned again below.

Background

4.The background (according to the applicant; and which the adjudicator accepted as true for the purpose of the said decision) is as follows:

(a)   the applicant was a college student in Pakistan;

(b)  during a cricket match in March 2006, his team had an argument with the other team and that developed into a fight;

(c)   the applicant grabbed a knife and stabbed a player, who turned out to be a member of the group known as Itehad Tulabah e Islam (“ITI”) and ITI members were seeking revenge;

(d)  after being threatened by the ITI group, the applicant moved to live with his uncle for about 2 months;

(e)   in June 2006, he was attacked by a group of people who he believed were ITI members;

(f)    he was injured and hospitalized, and he left Pakistan in July 2006 after he recovered;

(g)   from his telephone conversations with his brother in Pakistan, he learnt that ITI was still looking for him;

(h)  he accepted that he was not lodging any claim of torture or complaint against the government (or public authorities) of Pakistan;

(i)     rather, the applicant said that the Pakistan police often take bribe and they could not do anything about the ITI attacks.

CAT claim

5.The adjudicator recited the definition of “torture” in the Convention:

“… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”. (Article 1(1) thereof; para 24, the said decision)

6.The adjudicator then observed that:

(1)  ITI was an organization within the Pakistani colleges;

(2)  there was no indication ITI was supported by or associated with the public authorities of Pakistan;

(3)  the ITI member attackers were arrested and detained by the police;

(4)  the applicant’s speculation that the Pakistani police would not take action was unsupported by evidence;

(5)  the applicant’s marriage in Hong Kong was irrelevant to his CAT claim;

(6)  there was no evidence to show the involvement of public officials.

7.The CAT claim was dismissed for the above reasons.

8.The applicant’s Form 86 has not put forth any reason in support of his application for leave.

9.In the light of the matters set out above, I do not consider there to be any valid reason for giving leave to the applicant to apply for judicial review.

10.In a document attached to the supporting affirmation, the applicant put forth the following further matters:

(a)   he is the plaintiff of a civil claim which is still continuing in the District Court;

(b)  he would be removed on 19 March 2013.

11.The above matters are not valid reasons for me to exercise my discretion in the applicant’s favour in this application either.

Refugee claim

12.The putative respondent submits that, because the applicant only relies on the dismissal of his CAT claim in this application, it is not incumbent on the court to consider other potential claims (such as his refugee claim).

13.I agree with the submission.

Legal aid application

14.The applicant earlier applied for legal aid on 18 March 2013.  That application was refused on 28 March 2013.

15.He applied for legal aid again on 2 May 2013. However, he confirmed that there was no change of circumstance between 28 March 2013 and 2 May 2013.

16.Such being the case, I agree with the putative respondent there was good reason to uplift the stay of proceeding (arising from s 15(4), Legal Aid Ordinance (Cap 91) (read with r 7A, Legal Aid Regulations (Cap 91A))).

Conclusion

17.This application is dismissed.

Applicant acts in person and present

Ms Leona Cheung, SGC, of Department of Justice, for the putative respondent