MOHAMMAD WAQAS ALIAS WAJID ALI v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1826/2018

[2020] HKCFI 1473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1826 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:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 11 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 16 October 2019.

The applicant

3.  The applicant is a Pakistani national. Between October 2000 to June 2016, the applicant came to Hong Kong as visitor. He overstayed and was caught and repatriated and he came back again. During this period of time, he had committed various offences and was convicted and sentenced, the longest one being 21 months in 2006. On 24 June 2016, he surrendered to the Immigration Department. He lodged his non-refoulement claim by written representation dated 3 August 2016 and 3 October 2016 respectively.

4.  He claimed that if refouled, he would be harmed or killed by Chaudhry Abid Raza who is the member of the National Assembly in Pakistan.

5.  The relevant incidents took place as set out below.

a.     He and his father supported the Pakistan Muslim League (N) (“PMLN”) and then they switched to support Pakistan Tehreek-e-Insaf (“PTI”).

b.     Chaudhry was a member of the National Assembly in Gujrat. He asked the applicant to vote for him in the 2015 election. The applicant ignored him.

c.     One day, whilst he was walking on the street, he was kidnapped by some unknown men who were armed with guns. He was brought to Chaudhry’s place. He was beaten up by those people with fists and gun handles. He agreed to vote for Chaudhry and he was released. He did not report to the police.

d.     Chaudhry won the election.

e.     The PMLN members passed messages to him threatening him that he would be killed if seen on the street. His father advised him to leave. He left for Guangzhou, China on 3 January 2016 and sneaked into Hong Kong on 15 June 2016.

6.  The Director considered his application in relation to the following risks:

a.     torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

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”).

7.  By Notice of Decision dated 3 April 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that it was unsubstantiated. The Director found that the risk of harm from Chaudhry was low [18]; state protection was available to him [20] and internal relocation was available and reasonable [21].

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 23 May 2018.

9.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

10.  The Board considered the applicant’s evidence and rejected his evidence of facts in support of his claim [20]. See the reasons in paragraphs 21-83. The Board found that he would not face a real risk as he claimed if he returned to Pakistan [84].

Application for leave to apply for judicial review

11.  The applicant filed Form 86 dated 4 September 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of this application, he did not state that the Board had committed any error in reaching its decision. He only said that he would be subjected to harm from PMLN because he switched to PTI and he did not vote for PMLN in the 2015 election.

DISCUSSION

13.  The applicant appeared before me and he confirmed that he was free to express his views before the immigration officer. However, he said that the Adjudicator asked him ten questions in one go and expected him to answer all of them in one go too. He was unable to remember all the questions. His answers might therefore be vague or wrong. He said that he had told the Adjudicator not to do so and only asked him one question at a time. But the Adjudicator was not happy and continued to do so.

14.  This is quite extraordinary. Upon questioning, he said that the Adjudicator might have put the background facts to him. But he was not clear about the questions himself. An interpreter was there and he had told this to the interpreter.

15.  Having considered the evidence and circumstances, I do not accept his allegation to be valid complaint. First, this issue was not mentioned in the Board’s Decision. He did not mention it in his affirmation in support of his application. There is no evidence before me that the Adjudicator had any reason for doing it to him at the hearing. It would be very difficult for the interpreter to memorize all ten questions and put them to the applicant at one time. To do so would not assist the Adjudicator either because she might not be able to get the answers she expected in her questions. In the Board’s Decision, she had passed comments on his evidence that it was inconsistent and vague. I guess that is the reason he made such allegations to justify such comments. The Board’s finding as to the risks is the same as the finding of the Director, against whom he made no complaint. This is because he had his duty lawyer beside him at the interview.

16.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

18.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended 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