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HCAL1599/2018
[2019] HKCFI 1780
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1599 of 2018
BETWEEN
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Anjum Zulfiqar alias Anjun Zulfloar |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition |
1st Putative Respondent |
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The Director of Immigration |
2nd Putative Respondent |
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 (Order by Deputy High Court Judge K.W. Lung):
THE APPLICATION
1. This is the applicant’s application for leave to apply for judicial review against the respective decisions 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. He entered Hong Kong illegally from the Mainland China on 27 December 2015. He was arrested by police on 27 December 2015. He lodged the non-refoulement claim on 29 December 2015.
3. In his statements given to the Director and the Board, he claimed that if he was to be returned to Pakistan, he would be subjected to harm by a group of 7 members of Pakistain Muslim League (Nawaz) (“PML(N)”) because he was a supporter of Pakistan People’s Party (“PPP”) and he refused to vote for PML(N) in the general election in May 2013.
4. He stated that immediately after the said general election, which the PML(N) won, those PML(N) people came to his shop and beat up his employees. The applicant then moved to Lahore to avoid them. He learned that they were all along looking for him and they knew that he was in Lahore. So he moved to Karachi to stay with his friend. In November 2015, he was caught by those people on the street. They attacked him and his friend. He suffered injuries and had to stay in hospital for two days. A travel agent suggested he go to Hong Kong. He accepted his advice and flew to China. He came to Hong Kong through Shenzhen.
The Director’s Decision
5. The Director considered his application in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);
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 under RC”).
6. By Notice of Decision dated 19 October 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.
The Board’s Decision
7. The applicant appealed to the Board and he attended the hearing before the Adjudicator on 18 April 2018.
8. By Decision dated 13 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.
9. Having considered the evidence, the Board found that there were various inconsistencies in the applicant’s evidence as between what he said in his documents and what he said at the hearing [52]. The Board concluded that the applicant was not a witness of truth and it rejected his evidence. It did not accept that he had been threatened and beaten up by local supporters of the PML(N) or that they were still after him now [54].
Application for leave to apply for judicial review
10. In the Form 86 dated 10 August 2018 under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision.
11. In his affirmation in support of his application dated 10 August 2018, the applicant relied upon the following grounds:
(1) the hearing bundle was given to him shortly before the appeal hearing and it was in English without translation for him;
(2) he did not have legal assistance or language assistance for his appeal;
(3) he was not legally represented for the appeal;
(4) he did not accept the Director’s finding of the fact that his risk of being harmed or killed if he was to be returned to Pakistan was low;
(5) he was not having legal assistance for this application; and
(6) the Board’s Decision was not read to him and he did not know the reasons for rejecting his appeal.
DISCUSSION
The Director’s Decision
12. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the 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 Decision and this Board has wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.
13. Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:
“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”
14. Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.
15. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions
The Board’s Decision
16. The applicant appeared before me. He confirmed that his lawyer had explained the Director’s Decision to him and advised him that he had no grounds for appeal. He had his friend who explained the hearing bundle for him before the appeal hearing. He also said that he had had a fair hearing before the Adjudicator and he had no complaint against him. He came to his Court because he wanted more time so that his problem in his own country might be resolved. He might then safely go back.
17. The applicant further said that the Board’s Decision had been explained to him by his friend. I put the Board’s findings in paragraph 9 above to him for his comments. He had no comments on them.
18. It is obvious that the Board, for the reasons that it had given, did not accept the applicant’s facts of the claim. The applicant’s claim cannot possibly succeed without any fact to support it.
19. Grounds (1), (2) and (6) are simply inconsistent with what the applicant said in court. They fail.
20. Grounds (3) and (5) do not stand as decided in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 at paragraph [22].
21. Ground (4) is only his own opinion. The Board has found the facts of the case. Its Decision is final as held by the Court of Appeal in the case of Re: Moshsin supra. This ground fails too.
22. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.
CONCLUSION
23. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for judicial review. Accordingly, I dismiss his application.
Dated the 18th day of July 2019
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(Henry Ng)
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:
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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)).
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Sent to the Applicant on 18/7/2019
Anjum Zulfiqar alias Anjun Zulfloar
Applicant’s ref. no:
Nil.
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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 18/7/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition
1st Putative Respondent’s ref. no.:
USM 8969/17/10/299/P1758
The Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 2336/17 (formerly RBCZ 10252/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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