REHMAN SAQIB v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1665/2018

[2019] HKCFI 2146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1665 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 (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Pakistani national who entered Hong Kong illegally on 7 March 2009, only to be arrested the same day.  He lodged a torture claim on 10 March 2009 which was considered and rejected by the Director of Immigration (“the Director”) on 12 January 2015.  The applicant filed an appeal/petition with the Torture Claims Appeal Board (“TCAB”) and the appeal was dealt with and rejected on 10 May 2016.  

2.  The applicant’s claim in relation to the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6, International Covenant on Civil and Political Rights (“BOR 2”) was dealt with after that appeal. On 11 January 2017, the Director wrote to the applicant and invited him to submit any further information relating to a BOR 2 risk claim within 14 days. He did respond but did not submit any further information or additional facts in relation to a BOR 2 claim.  A notice of further decision sent by the Director dated 27 January 2017 rejected the applicant’s BOR 2 claim.  The applicant lodged an appeal/petition to the TCAB on 15 February 2017 against that decision.

3.  The adjudicator of the TCAB determined the appeal/petition without a hearing and dismissed it on 26 July 2018.  The applicant filed a notice of application for leave to apply for judicial review on 17 August 2018.  The application is limited to the TCAB decision dated 26 July 2018 which is limited to a BOR 2 risk claim.  The applicant did not request an oral hearing, therefore, I intend to deal with his application on the papers.

TCAB decision without a hearing

4.  The adjudicator of the TCAB set out a chronology of the applicants claim in his decision.  He noted that the applicant had no further information to submit to the Director that related to a BOR 2 risk, in a notice of appeal/petition he had provided nothing in fact or in law which was legally different from or added significantly to what was already in his previous claim or case.  This meant that there were no new facts to consider, no issue of law raised or any matter of credibility to resolve.  The evidence had not changed nor had the applicant’s case evolved.  The adjudicator was of the view that a hearing oral evidence from the applicant would not have advanced his case.

5.  The adjudicator considered Article 2 and its subsections.  He considered several authorities relating to Article 2. The adjudicator found that the applicant had not shown that there is or will be a necessary and foreseeable breach of his rights protected by BOR 2.  There was no evidence showing that the applicant would be at risk of harm from capital punishment inflicted by the government of Pakistan; or face harm from the Pakistani government that would place his life at risk.  He noted that the applicant’s claim was that any harm that would have arisen if he had returned to Pakistan came from his uncle because of a family dispute over a piece of land.  Even then, the TCAB had rejected his evidence and his credibility after the first oral appeal hearing.

6.  The TCAB adjudicator considered the findings of that first appeal decision and found it provided support for stating that it has not been shown that there is or will be a necessary and foreseeable breach of the applicant’s right protected by BOR 2. He concluded that there was no evidence to show that the applicant would be at risk of BOR 2 harm if refouled.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

7.  I must consider this application with rigorous examination and anxious scrutiny.  The supporting affirmation contains 14 grounds followed by 19 pages of nonsensical statements that purport to be grounds.  I cannot decipher how any of the grounds, statements, quotes or comments relate to this adjudicator’s decision to dismiss his appeal/petition against the Director’s decision that the applicant failed to establish a personal and real risk of his absolute and non-wrong double rights under the Hong Kong Bill of Rights being violated, including the right to life under BOR 2 if he were to return to Pakistan.

8.  I have considered whether the decision not to conduct an oral hearing was fair and I am satisfied that the adjudicator’s reasons for considering the appeal/petition on the papers are proper and reasonable.  There was no new information or facts submitted to support or address a BOR 2 claim, nor was there any issue of credibility that needed to be resolved in an oral hearing.

9.  In my judgement, none of the 14 grounds are reasonably arguable.  I cannot see any that apply to the adjudicator’s decision.  I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

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