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

HCAL76/2019

[2020] HKCFI 1005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 76 of 2019

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 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 12 February 2016 having entered illegally by boat from China. He was arrested by police on 13 February 2016. On 17 February 2016, he lodged a non-refoulement claim in which he alleged that he would be at risk of harm if refouled back to Pakistan.

3.  He claimed that if refouled, he would be harmed or even killed by his paternal uncle, Muhammad Iqbal (“Iqbal”) and his son and his men due to a land dispute. The land dispute arose because his grandfather owned a piece of 2-kanal land, which was transferred to his father and his uncle, Iqbal in equal shares. His father did not farm the land, but Iqbal did. After his father passed away, he would like to claim his father’s share of the land from Iqbal, who refused to give it to him. He had gone to Iqbal’s home and made the requests from time to time. Iqbal was sick of his visits. He and his people hit him with sticks and kicked him. Iqbal threatened to kill him if he dared to approach him for the land again. On one occasion, Iqbal took out a gun to threaten him. He fled. He did not go to see the doctor after he was beaten up. He knew that Iqbal was connected with the Pakistan Muslim League (Nawaz), a powerful party there. In order to avoid Iqbal, he had stayed in other places for a year and nothing happened. He was assisted by a friend and came to Hong Kong.

The Director’s Decision

4.  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”).

5.  By Notice of Decision dated 22 November 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board

6.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 23 October 2018.

7.  By Decision dated 31 December 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

8.  The Board considered the applicant’s evidence and found that:

a.  there were inconsistencies and contradictions in his evidence, the nature of which was sufficiently serious as to undermine the reliability of his story that he feared his uncle, Iqbal [38(a)] and what his real problem was [38(b)];

b.  there was no evidence that Iqbal was still looking for him [39(1)];

c.  there was no evidence that Iqbal would expend effort to travel throughout the country to kill him [39(2)];

d.  there was evidence that the state of Pakistan was unwilling to help him for a Convention reason and he had not sought protection at all [39(3)];

e.  there was evidence that state was available to him [54];

f.  there was no evidence to show that he had committed criminal offence, which would deprive him of his life by the government [58];

g.  there was no evidence that he would be subjected to BOR 3 risk [63];

h.  there was no evidence that he would be subjected to Torture risk as defined in s.37U of the Ordinance [70]; and

i.  internal relocation was an option open to him [78].

Application for leave to apply for judicial review

9.  In his Form 86 dated 9 January 2019 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.

10.  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.  He did not have legal assistance for his appeal.

2.  The Adjudicator’s decision was wrong in deciding that his case had no substance.

3.  The Adjudicator did not look at his case afresh, but dismissed it because it was a land dispute.

4.  The Adjudicator was biased.

5.  He had no language assistance, which was procedural unfairness. However, some of other claimants were provided with translation.

6.  The Board did not give proper explanation about its consideration and decision.

DISCUSSION

The Director’s Decision

11.  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.

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

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.  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 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 he understood Board’s Decision himself.

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

17.  It is obvious that the Board did not reject his evidence wholesale, but rejected his evidence on the salient facts in support of his claim, giving the reasons for his findings. 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.  The Court of Appeal held in Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 that the applicant is not entitled to free legal representation or assistance at every stage of the proceedings as he was legally represented at the screening stage. He said in his grounds that his lawyer had advised him that he had no merits in his appeal. Ground (1) fails.

20.  The Court of Appeal in Re Sharma Poonam [2019] HKCA 804, 19 July 2019 that high standard of fairness does not require language assistance for the applicant. There is no evidence of other cases where translation was provided. Ground (5) fails.

21.  Grounds (2) to (4) are his opinions without any evidence in support of them.

22.  Ground (6) fails as the Board has given its reasons in support of its findings.

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 give him leave to apply for judicial review of the Board’s Decision. 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