TARIQ WAQAS ALI v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2845/2018

[2020] HKCFI 784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2845 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

(1)      Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 9 July 2018 be refused; and

(2)      Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)      If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)      When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)      The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)      If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)      Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the respective decisions 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. He arrived in Hong Kong on 20 February 2016 through China illegally. He was arrested by police on 20 February 2016 and was referred to the Immigration Department on 21 February 2016. On 22 February 2016, he lodged a non-refoulement claim.

3.  His reason for his application is that if refouled, he would be harmed or even killed by the people from the Pakistan Tehreek-e-Insaf (the “PTI”).

4.  The applicant claimed that he was a supporter of the Pakistan Muslim League (Nawaz), a rival party to PTI. Sometime in 2013, in a party gathering, some PTI members came and attacked them with weapons. He sustained a wound on his head and bruises over his body and was hospitalized for one day. His two other party members were killed and one was seriously injured. They reported this matter to the police, which did not take action against the PTI people. He had to stay in other places of his relative or friends in order to avoid the PTI members. His mother told him not to return home as the PTI people and the police were still looking for him. He was so scared that he came to Hong Kong through China.

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 29 August 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 a hearing before the Adjudicator on 7 June 2018.

8.  By Decision dated 9 July 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.  The Board considered the applicant’s evidence and found: “ … the evidence of the appellant to be wholly unreliable. There were glaring contradictions between his NCF (Non-refoulement Claim Form) and Interview which he adopted at the hearing, and his evidence at the hearing. …[51] …He is not a witness of truth. In my view, his claims regarding the assault by the PTI people, his fear about the PTI taking revenge, and his being pursued by the police for a false case have been fabricated. I am not persuaded that any ill-treatment or harm took place [52]”

Application for leave to apply for judicial review

10.  In his Form 86 dated 11 December 2018 under Order 53, rule 3 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 respectively.

11.  As explained below, his application for leave to apply for judicial review should be against the Board only, I shall focus his grounds against the Board’s Decision.

1.     The Board’s Decision was unfair and unreasonable.

2.     The Adjudicator failed to give him sufficient time and chance to arrange relevant evidence in support of his appeal.

3.     BOR 2 right must be given effect.

DISCUSSION

The Director’s Decision

12.  In the decision 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 held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

13.  The applicant has not set out any exceptional circumstances.

14.  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.”

15.  The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

16.  It can be seen that the applicant’s application under O.53 RHC is out of time. The Board’s Decision is dated 9 July 2018 whereas his application was made on 11 December 2018. He explained that he was in prison for an offence and immediately after his discharge from prison, he was detained in the CIC of the Immigration Department. I shall, for my decision as to whether time should be extended for him to take out this application, consider the merits of his application in accordance with the decision of the Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015 §27(3).

17.  The applicant appeared before me. He confirmed that he had been able to speak freely and tell his stories fully to the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision and the Board’s Decision to him.

18.  I had put the Board’s findings to him and asked him if he had any comments. He said that he had no comments.

19.  It is obvious that the Board rejected all of his evidence on the salient facts in support of his claim. Therefore, he has no factual basis for his claim.

20.  The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14

“13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….

14.     Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

21.  Grounds (1) and (3) are only his opinions without any evidence in support of them.

22.  Ground (2) fails as he had not raised this issue with the Adjudicator at the appeal hearing.

23.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

24.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him extension of time for his application. Accordingly, I dismiss his application.

25.  It is further directed that:

a.     If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b.     When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c.     The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

d.     If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e.     Liberty to apply.

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