USMAN MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL1194/2018

[2019] HKCFI 2070

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1194 of 2018

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

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

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 Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

The applicant

2.  The applicant is a Pakistani national. He came to Hong Kong illegally on 14 August 2016 and was arrested by police on the same day. On 17 August 2016, he was referred to the Immigration Department for investigation. On 19 August 2016, he made the non‑refoulement claim.

3.  He claimed that if he was repatriated back to Pakistan, he would be harmed or killed by his neighbouring family due to a land dispute.

4.  In his statement given to the Director and the Board, he said that his family had problems with the neighbouring family. They blocked the main access of the street and made claim to their land. There were clashes between his family and the neighbouring family since 1996. His grandfather was injured by those people and he died in hospital as a result. In 2001, his paternal uncle and his brother were shot in the thigh. In 2007, he was beaten up in the street and he suffered head injury. In 2009, he was beaten up again by 35 people. His cousin was shot dead in 2012. In 2015, he opened a shop, which was burgled by the people of the neighbouring family. It closed down finally. He decided to come to Hong Kong to seek protection.

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”).

6.  By Notice of Decision dated 30 December 2016 (“the Director’s Decision”), the Director refused his application for the reason that his claim was not substantiated.

The Board

7.  The applicant appealed to the Board and attended a hearing before the Adjudicator on 29 May 2018.

8.  By Decision dated 11 June 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.  The Adjudicator had reviewed his evidence that he had given to the immigration officer and the evidence that he had given before himself, together with some documents produced by the applicant at the hearing. The Adjudicator found:

“89. …On the totality of the evidence, I do not find his evidence credible…. Taking the evidence as a whole, I am not persuaded, even to the low standard required, that the Appellant had been assaulted and threatened by members of his neighbour family who were of the Deenakay tribe, or by MQM members in Karachi, in his home country, Pakistan.

90. …he had not been ill-treated in his home area, or threatened by MQM members in Karachi, in the past, I do not see any real chance that he will be harmed by members of his neighbour family of the Deenakay tribe, or by MQM members in Karachi, or otherwise ill-treated by any one, if he is refouled….”

Application for leave to apply for judicial review

10.  By Form 86 dated 25 June 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 respectively.

11.  In his affirmation dated 25 June 2018, he set out the reasons in support of his application in a narrative form. I shall summarize his specific grounds below:

(1)  the Director had relied upon the outdated Country of Origin Information (“COI”) on state protection;

(2)  the Director had failed to give appropriate weight to the COI that Pakistani police and judiciary remain corrupt;

(3)  the Adjudicator did not translate the new documentary proof of newspaper cutting regarding his cousin’s murder at the hearing and he had not considered the information.

DISCUSSION

The Direction’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 investigation 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 Decision.

The Board’s Decision

16.  Grounds (1) and (2) are the applicant’s opinions without evidence in support. They fail.

17.  Ground (3) refers to the documentary evidence that he produced at the hearing. The Adjudicator had considered this piece of evidence as can be seen in paragraph 72 of the Board’s Decision. This ground fails too.

18.  I find that the applicant is unable to show that he has reasonable chance of success in his judicial review.

CONCLUSION

19.  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.

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