HCAL1100/2018
[2019] HKCFI 391
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1100 of 2018
BETWEEN
Hussain Munawar
Applicant
and
Nicholas Chan, the Adjudicator of the Torture Claims Appeal Board/
Putative
and
Director of Immigration
Putative
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung :
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 for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board ”) with the Director of Immigration (“the Director ”) as interested party.
The applicant
2. The applicant is a Pakistani. He was arrested by the police for illegal remaining in Hong Kong on 20 June 2015. On 22 June 2015, he was referred to the Immigration Department for investigation. On 24 June 2015 whilst being detained in the Immigration Center, he made a non-refoulement claim and was released on recognizance. He was, however, arrested and convicted of the offence of taking employment without the permission of the Director. He was sentenced to 15 months’ imprisonment. He claimed that if he was refouled to Pakistan, he would be ill-treated or even killed by the members of the Pakistan Muslim League (N) due to his being a supporter of the Pakistan Tareek-e-Insafe and his refusal to join their party.
3. In his statements to the Director and the Board, he said that he was a supporter of Pakistan Tareek-e-Insafe Party (“PTI”) and he was warned by its rival party, Pakistan Muslim League (N) (“PML(N)”), through telephone call not to support PTI in 2014. He was not sure if the telephone call was made by the PML(N) people. In any event, he was disturbed by this warning and he went to his friend’s place to stay. His friend was attacked. In 2015, he was kidnapped on the street to an unknown open place where there were two other hostages. The PML(N) people shot the other two hostages and told him to pay 100,000 US or join PML(N) within 6 months. He was released. He feared for his safety 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. 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 14 November 2016, the Director refused his application on the ground that he failed to substantiate his claims.
The Board
6. The applicant appealed to the Board and he attended a hearing before the Adjudicator on 2 February 2018.
7. By Decision dated 24 May 2018 (“the Board’s Decision ”), the Board refused his appeal and confirmed the Director’s Decision.
8. The Adjudicator accepted his story. But he considered that Pakistani government could provide him with state protection. Also, he took the view that the applicant could relocate to somewhere else in Pakistan. See paragraph 45 and paragraph 46 of the Board’s Decision.
Application for leave for judicial review
9. By Form 86 dated 14 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 decision of the Adjudicator of the Board.
10. In his affirmation in support of his application filed on 14 June 2018, he set out the reasons in support of his application. I shall summarize his specific grounds below:
a. he was not legally represented in his appeal against the Director’s Decision;
b. the hearing bundle for the appeal was delivered to him shortly before the appeal hearing;
c. the majority of the documents in the hearing bundle was written in English which he required assistance;
d. he could not afford interpreter for the documents and therefore, he was confused at the hearing;
e. the Board had relied upon hearsay information, some of which outdated relating to Country of Origin Information; and
f. BOR 2 risk was determined without screening by the Immigration Department.
DISCUSSION
The Board’s Decision
11. At the hearing before me, the applicant confirmed that he was given the Hearing Bundle on the day of the appeal as he did not receive it at home. But he was assisted by the interpreter and he had no problem with the contents. He was assisted by his friend for the appeal and this application. He further confirmed that he had no complaint against the Director or the Adjudicator.
12. As to ground a., the Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 , 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 , Re Zahid Abbas [2018] HKCA 15 , Re Tariq Farhan [2018] HKCA 17 , and Re Lopchan Subash [2018] HKCA 37 . The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.” This ground fails.
13. Grounds b, c, and d are no longer relevant in view of the applicant’s confirmation before me.
14. As to ground e, it fails because under section 18 of Schedule 1A(1) of the Ordinance, the Board may consider the same evidence that was before the Immigration officer[1] [2] Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187[3]
15. As to ground f., the Director had, through the applicant’s lawyer, obtained the additional facts on BOR 2 risk. He had considered the additional facts too. The Director was not obligated to hold another screening by interviewing the applicant under the law. The screening had been done on the papers. This ground therefore fails.
16. For the reasons above, I find that the applicant was unable to show that he has reasonable chance of success for his proposed judicial review.
CONCLUSION
17. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 22nd day of February 2019
(Alan Ngan)
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
Sent to the Applicant on 22/2/2019Hussain Munawar
Applicant’s ref. no:
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 22/2/2019
Nicholas Chan, the Adjudicator of
Director of Immigration
Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
Form CALL-1
[1] In an appeal under section 37ZR, the Appeal Board has the power to review the merits of the case, and accordingly it may consider—
(a)the same evidence that was before an immigration officer;
[2] After a completed torture claim form is returned by a claimant, an immigration officer—
(a)may require the claimant to provide the immigration officer with any information or documentary evidence related to the claimant’s torture claim that the immigration officer specifies;
[3] See §21