WAKEEL AMJAD v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2806/2018

[2019] HKCFI 2814

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2806 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the decision 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 7 June 2016 illegally through China. He surrendered to the Immigration Department on 16 June 2016. He lodged a non-refoulement claim by written signification on 11 August 2016. On 28 March 2017, he was arrested by police for taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully. On 30 October 2017, he was convicted of the offence and was sentenced to 15 months’ imprisonment.

3.  He claimed that if refouled, he would be harmed or killed by the people from the Pakistan Muslim League-N (“PMLN”) because he supported an independent candidate, Rao Muhammad Ashraf (“Rao”) in a local government election for the Chairman of the Union Council in October 2015 (the “Election”).

4.  In his statements given to the Director and the Board, he said that he supported Rao in the Election because Rao helped the poor people. He was invited but refused to join PMLN because he considered they were corrupt. Because of his support for Rao, he was attacked twice by the PMLN people. The first incident took place in September 2015, shortly after the voting of the Election. The PMLN people attacked him and other supporters with sticks and guns. They fired the gunshots in the air. They kicked and punched him. He suffered head injury. He reported this incident to police. The police refused to register the complaint because PMLN people had made the complaint first. The second incident took place in December 2015. There was an argument between Rao’s supporters and the PMLN people as to who should win the election. The PMLN people attacked them with sticks, pistols and pump-action guns. He ran home and hid himself inside. They threatened to killed him. Then, he moved to a friend’s place in Lahore city where he stayed for three months. During this period of time, his parents told him that the PMLN people were looking for him and they had filed a claim with police against him. He arranged to come to Hong Kong.

The Director’s Decisions

5.  The Director considered his application only 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 2 March 2018 (“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 14 November 2018.

8.  By Decision dated 28 November 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 facts below:

“59. …It is willing to accept that the Appellant may have supported Rao in Union Council elections in the past…. the Board does not accept that the Appellant was actively and heavily involved in supporting Rao in any way in the lead up to Union Council Chairman elections held in October 2015. It further does not accept that the Appellant had many followers in the village who also voted for Rao in 2015 and finds his evidence on this to be highly exaggerated. Given these findings and the timing of the Appellant’s return to Pakistan, the Board does not accept that PML-N members/supporters approached him at any time and told him not to support Rao or that they wanted him to support their party due to his popularity.

60. …the Board does not accept the Appellant’s evidence of having been attacked on election night by PML-N supporters, or that police refused to file an FIR regarding the incident.

61. …the Board does not accept that PML-N supporters fired a gunshot at the Appellant or chased him home, where they fired a further shot and threatened to kill him. … the Board does not accept that any such FIR was ever initiated by PML-N supporters. It does not accept that PML-N supporters or the police have been looking for the Appellant, nor does it accept that Mian Yawar Zaman intends to kill the Appellant, as claimed in the Appellant’s NOA.

62. …The evidence before the Board does not suggest that Rao himself or anyone supporting him faces a real risk of harm reaching the minimum level of severity required.

63. Considering all the evidence before it, and in light of the findings above, the Board considers that there is not a real risk the Appellant would face any of the proscribed forms of harm should he return to Pakistan.”

10.  On the basis of the above finding of facts, the Board rejected his claim under all the risks above.

11.  In his Form 86 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.

12.  In support of his application, the applicant relies upon the grounds attached to Form 86 below.

1.  The Director failed to give sufficient weight to the fact that the Pakistani police are controlled by the people who are politically active.

2.  The Director relied upon the Country of Origin Information (“COI”) to say that the Pakistani government has taken practical steps to monitor the conduct of Pakistani police and improve their effectiveness. But these measures are, in the applicant’s view, mere speculation.

3.  The Director took what the State protection would be able to provide as what the State was in fact providing.

4.  High standard of fairness requires the Director to adopt what the State was providing rather than what it was able to provide.

DISCUSSION

The Director’s Decision

13.  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.  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

15.  The applicant appeared before me. He confirmed that he was able to speak freely and tell his story fully to the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision to him. His friend had explained the hearing bundle and the Board’s Decision to him.

16.  I explained the Board’s reasons for refusing his appeal and asked him if he had any comments. He said that he had no comments.

17.  It is obvious that as 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.

18.  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.”

19.  All of his grounds above are his opinions without any evidence to support them.

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

CONCLUSION

21.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

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