ALI MALIK v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2915/2018

[2019] HKCFI 2532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2915 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

(1)      Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 7 March 2018 be refused; and

(2)      Application for leave to apply for judicial review be dismissed.

It is further directed that:

(1)      If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)      When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)      The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)      If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)      Liberty to apply.

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”) with the Director of Immigration (“the Director”) as interested party.

The applicant

2.  The applicant is a Pakistani national. He arrived in Hong Kong on 25 May 2006 through China illegally by speed boat. He was arrested by police on 3 February 2008. On 3 February 2008, he was charged and convicted of the offences of indecent assault and illegal remaining. He was sentenced to 16 months’ imprisonment. He raised his non‑refoulement on 18 July 2008.

3.  In his statements given to the Director and the Board, he said if refouled, he would be harmed or killed by Mr. Abbas, Mr. Akram (Abbas’s father) and/or his gang as he had hit Mr. Abbas with a wicket in a cricket match in 2006.

4.  In 2006, there was a cricket game, in which he had had a dispute with Mr. Abbas. The dispute developed into a violent fight where he hit Mr. Abbas’s arm with a wicket which was lying on the ground. As a result, Mr. Abbas suffered injury and his arm might have been broken. Since then, Mr. Abbas and his gang of people attempted locate him for a revenge. They had once gone to his house for him. He was not there and they hit his brother and poured petrol on him, setting fire on him. He jumped into a container to extinguish the fire. He was admitted to hospital for 15 days. The matter was reported to police, which took no action. He moved to some other places in order to avoid Mr. Abbas. He moved to his friend’s place and his former teacher’s place. He was told that Mr. Abbas was looking for him. His family was also disturbed by Mr. Abbas. They moved to Karachi and Abbas was unable to find them. He took his friend’s advice and came to Hong Kong.

The Director’s Decisions

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 (“the HKBOR”) (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 14 November 2014 and a Notice of Further Decision dated 9 October 2017, the Director refused 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 10 November 2015.

8.  By Decision dated 7 March 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decisions.

9.  The Board considered the applicant’s case and concluded:

“41. …I still have no difficulty to come to the finding that the Applicant has not been telling this Board the truth of the matter.

43. There was no evidence to show the police or the public authorities had acted oppressively towards the Applicant. He met with no incident when he lived in Lahore. He was able to leave Pakistan with no difficulty. … He has the obvious option of relocating to Lahore or to Karachi…

45. There is no reasonably credible account of events for this Board to draw the inference that the Applicant would likely be at risk of torture in his country in the context of Part VIIC of Cap 115.

48. There in no reasonably credible account of events for this Board to draw the inference that the Applicant would be at risk of facing death penalty … under Article 2 of the HKBOR.

53. There is no reasonably credible account of events to show that the Applicant would be at risk of TCIPTP in his country under Article 3 of the HKBOR.

59.   I do not accept there is any reasonably credible account of event for this Board to draw the inference that the Applicant would be at risk of persecution under the Refugee Convention.”

10.  In his Form 86 dated 19 December 2018, the applicant applied for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application dated 19 December 2018, the applicant relied upon a written submission, a copybook of other similar cases with stultifying and discursive facts, irrelevant materials and grounds, which I shall summarize as follows:

1.     the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

2.     the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

3.     he was confused at the appeal hearing; and

4.     the Adjudicator had relied upon hearsay information and outdated material in relation to COI and the information was outdated.

DISCUSSION

The Board’s Decision

12.  I notice that the applicant’s application is late for about 6 months, the deadline being 7 June 2018. I have to consider whether the applicant has a reasonable chance of success in his intended application for leave to apply for judicial review. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015.

13.  The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer had explained to him. His wife had assisted him with the Hearing Bundle and the Board’s Decision.

14.  I explained the Board’s findings above to him and asked if he had any comments. He said that he had no comments on them.

15.  It is quite obvious that, apart from some fundamental facts such as his nationality, the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim.

16.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].

17.  Grounds (1) to (3) fail as they are inconsistent with what the applicant said before this Court.

18.  Grounds (4) is his opinion without any evidence in support of it.

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

CONCLUSION

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

21.  It is further directed that:

a.     If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b.     When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c.     The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondents and whether the application for leave to appeal shall be determined on paper;

d.     If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions.

e.     Liberty to apply.

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